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Petitioner: Professor KAZIM HUSSAIN VS Respondent: GOVERNMENT OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, IslamabadHonorable Justice Dr. Fida Muhammad KhanKowkab Iqbal
2013 P L C (C.S.) 1491
[Federal Shariat Court]
Before Dr. Fida Muhammad Khan, Rizwan Ali Dodani and Sheikh Ahmad Farooq, JJ
Professor KAZIM HUSSAIN and others
Versus
GOVERNMENT OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others
Shariat Petitions Nos.8/I of 2004 linked with 6/I, 8/I, 12/I and 69/I of 1994, decided on 12th December, 2012.
(a) Constitution of Pakistan---
----Art. 203-D(1)---Federal Shariat Court---Jurisdiction---Jurisdiction conferred on Federal Shariat Court by the Constitution is confined only to Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet (may peace be upon him) and no other consideration or extraneous circumstance has any bearing on its judgments in Shariat petitions.
(b) Islamic jurisprudence---
---Equality before law---Hallmark of Islamic Injunctions is principle of equality before law and equal protection of law for all people, irrespective of their gender, colour or creed and there is no concept of discrimination in administration of justice between one person and another on any basis---No human being can be denied or deprived of any fundamental right, in social and legal perspectives, nor any judicial right can be reserved for any particular group on external consideration of his wealth, status, caste, colour or any other ground---Equality before law and equal protection of law is the cardinal principle, which runs like golden chord in all Injunctions of Islam.
Holy Quran, Verses 4:1 rel.
(c) Interpretation of statutes---
----Rules under a statute and Office Memorandums---Object, purpose and scope---Rules made in pursuance of delegated authority must be consistent with statute under which they came to be made---Authority is delegated only to the end that provisions of statute may be better carried into effect and not with the view of neutralizing or contradicting those provisions---Purpose of framing Office Memorandums/Rules is just to facilitate and provide for procedural matters which are subsidiary to the provisions of Act itself---If rules framed under statutes or bye-laws framed under rules, are in excess of provisions of the statute or are in contravention of or inconsistent with such provisions, then such provisions/rules etc. must be regarded as ultra vires the statute and cannot be given effect to.
(d) Constitution of Pakistan---
----Art. 203-D---Office Memorandums No. R.2(3)/03, dated 31-7-2004, Ministry of Housing and Works, F-5(17)/Gaz-Imp(i)/73, dated 20-11-1974 & F.2(1)-R5/91, dated 25-8-1991, Ministry of Finance Division---Repugnancy to Injunctions of Islam---House rent allowance to husband and wife---Entitlement---Petitioners were civil servants and their grievance was that when both husband and wife were civil servants they both were entitled to house rent individually and not only to one out of the two---Validity---Marriage was not a disqualification nor an offence and therefore, civil servant after getting married should not be penalized or deprived of his / her due house rent---Both spouses were entitled to get conveyance allowance even if they were working at same station and same place and same logic applied to house rent as well---Office memorandum/rule to the extent of depriving of house rent allowance to one of the spouses who were civil servants and one of whom was allotted government accommodation, was repugnant to the Injunctions of Islam---Federal Shariat Court, in view of Art.203-D(3) of the Constitution, directed Federal Government, as well as the Provincial Governments of Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa and relevant autonomous bodies and institutions including universities, to take necessary steps to amend office memorandums/rules so as to bring the same in conformity with Injunctions of Islam---Petition was allowed accordingly.
Kowkab Iqbal for Petitioners.
Shabbir Mehmood Malik, Standing Counsel-II and Abdul Ghaffar, S.O. M/o Finance, Islamabad for Federal Government.
Ch. Saleem Murtaza Mughal, Asstt. A.-G., M. Javed Ali, District Accounts Officer, Finance Department, Punjab and Habib-ur-Rehman, S.O. Judicial-II, Home Department, Lahore for Government of the Punjab.
Muhammad Qasim Mirjat, Addl. A.-G. for Government of Sindh.
Aziz-ur-Rehman and Amanat Ullah, S.O., Finance Department Khyber Pakhtunkhwa for Government of Khyber Pakhtunkhwa.
Azam Khan Khattak, Addl. A.-G. for Government of Balochistan.
Barrister Feroze Jamal Shah Kakakhel as Amicus Curiae.
Date of hearing: 19th June, 2012.
JUDGMENT
DR. FIDA MUHAMMAD KHAN, J.--- The petitioners Professor Kazim Hussain and Shaukat Ali Awan who have jointly filed Shariat Petition No.8/I of 2004, have challenged sub-para (xiv) of O.M.No.F.2(3)/03 dated 31-7-2004 issued by Ministry of Housing and Works, Islamabad on the ground that it is repugnant to the Injunctions of Islam. The relevant portion of the impugned O.M. reads as under:---
"(xiv) When both husband and wife are employed at the same station, only one of them shall be entitled to allotment of hired accommodation and house rent allowance shall not be paid to both of them and 5% rent charges shall be deducted from the pay of the allottee. In case they are serving at two different stations, one of them shall be allotted accommodation and the other one shall be allowed house rent allowance."
The petitioners have prayed that the above mentioned para of the said O.M. may be declared repugnant to the Injunctions of Qur'an and Sunnah of the Holy Prophet ( ) .
2. We may mention that Dr. Mahmood-ur-Rehman Faisal, Javed Iqbal, Ch. Munir Sadiq and Dr. Iftikhar Ahmed, petitioners have also separately filed identical Shariat Petitions bearing Nos.6/I of 1994, 8/I of 1994, 12/I of 1994 and Shariat Misc. Application No.69/I of 1994, respectively, whereby they have challenged the sub-paras (ii) and (iii) of O.M. No.F.5(17)/Gaz-Imp(i)/73 dated 20-11-1974 and O.M. No.F.2(1)-R.5/91 dated 25-8-1991 issued by Ministry of Finance Division. The same read as under:---
"O.M. dated 20-11-1974
"(ii) If both husband and wife being Government servants are residing together at the same station in a Government residence allotted to one of them, house rent allowance shall not be admissible to the other even if the station is a specified one.
(iii) In a case at (ii) above if none of them has been provided with Government residence and both are residing together in a private house at a specified station the house rent allowance shall be admissible to either the husband or wife who elects to receive the allowance."
O.M dated 25-8-1991
"The undersigned is directed to say that the question of grant of house rent allowance to husband/wife serving in Government and posted at the same station, if accommodation is provided to one of them by Government, has been duly considered. It has been decided that if both the husband and wife are living together in residential accommodation provided by the Government at the same station, no house rent allowance shall be allowed to either of them. If, however, the spouse is living separately from husband/wife, the house rent allowance shall be admissible to one of them who does not reside in Government accommodation".
All these petitioners have prayed that para (ii) of O.M. dated 20-11-1974 and the first portion of O. M. dated 25-8-1991 may be declared as repugnant to the Holy Qur'an and Sunnah of Holy
Prophet ( ). They have also prayed that both husband and wife should be made entitled for house rent allowance.
3. In response to our Orders dated 9-4-1994, 5-12-1995 and 23-4-2007 in the above Shariat Petitions, the following written comments have been received:---
(a) Comments of Federal Government in Shariat Petition No.8/I of 2004, dated nil.
"1. That this petition is not maintainable as the petitioner has not indicated any provision of Holy Qur'an and Sunnah, against the violation of which it has been filed.
2. That the petitioner is seeking equality between male and female and is before wrong forum. The Constitution provide remedy under Article 25. (1) All citizens are equal before law and are entitled to equal protection of law."
"(2) There shall be no discrimination on the basis of sex alone."
"(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
"On Merits
1. That the House Rent Allowance is a compensatory allowance and is paid in lieu of the government accommodation. Admissibility of house rent allowance to both the husband and wife if none of them is provided with the Government residence enables them to hire a private house as rentals of the housing units in the open market are considerably high.
2. That the husband and wife unless legally separate, are a single family unit and reside together. When official accommodation is provided to one of them, the other is not required to hire/get a house, and hence house rent allowance or independent house for the other is not warranted.
3. Though all the Government employees are entitled to official accommodation but Government provides accommodation to a small portion of the employees due to limited availability of housing units. The rentals levels in the open market being considerably high, the husband/wives who have been provided government accommodation are in an advantageous position compared to those who have not been provided the housing facility.
In view of the above facts it is submitted that the rule of the Government which bars admissibility of house rent allowance to husband/wife if the other spouse is in occupation of a Government residence, is based on rationale and the same does not conflict with the Islamic Injunctions or any provision of the Constitution. It is, therefore, prayed that the honourable Federal Shariat Court may kindly reject the claim of the petitioner as the same is not covered by the rules/policy of the Government."
(b) Comments of Finance Division, Federal Government in Shariat Petitions Nos.6/I of 1994, 8/I of 1994 and 12/I of 1994 dated 8-6-1994.
"The petitioner has challenged the provision of rules contained in clause (ii) of the Finance Division's O.M.No.5(17)-Gaz.Imp(I)/73 dated 20-11-1974 and first part of the O.M. No.2(1)R.5/91 dated 25-8-1991 which bars admissibility of house rent allowance to husband/wife if the other spouse is in occupation of a Government residence. The petitioner has held that the said provision of rules is against the spirit of Qur'an and Sunnah. The petitioner has prayed that the rule in question may be declared as cancelled enabling the husband and wife to avail house rent allowance/house even if the other spouse is provided with Government residence.
2. Finance Division is concerned with the element of house rent allowance. Position in this regard is explained below.
3. Under the existing orders/instructions, house rent allowance is admissible to a Government employee not provided with the Government accommodation. In case of husband and wife, when both are serving members and posted at the same station and Government accommodation is not provided to either of them, house rent allowance is admissible to both the spouses. However, if both are living together at the same station in the Government accommodation provided to one of them, house rent allowance is not admissible to the other spouse even if the station is a specified one. The rationale of the said rules is as follows:---
"(i) House Rent Allowance is a compensatory Allowance and is paid in lieu of the government accommodation. Admissibility of house rent allowance to both the husband and wife if none of them is provided with the Government residence enables them to hire a private house as rentals of the housing units in the open market are considerably high.
(ii) Husband and wife unless legally separated form a single family unit and reside together. When official accommodation is provided to one of them, the other is not required to hire/get a house, and hence house rent allowance or independent house for the other is not warranted.
(iii) Second part of Finance Division's O.M. dated 25-8-1991 a permits house rent allowance to a spouse in case of legal separation and not ordinary separation.
(iv) Though all the Government employees are entitled to official accommodation but Government provides accommodation to a small portion of the employees due to limited availability of housing units. The rentals levels in the open market being considerably high, the husband/wives who have been provided government accommodation are in an advantageous position compared to those who have not been provided the housing facility.
4. It is submitted that the rule disputed by the petitioner was reviewed by Finance Division at various occasions but it was not found desirable to amend the rule for the reasons mentioned above. The issue was also raised with the honourable Wafaqi Mohtasib by a few complainants. However, the honourable Wafaqi Mohtasib in his findings on two complaints rejected the demand with the following observations:---
"The complaint is for the grant of extra benefit which question relates to terms and conditions of a Government servant. I do not find any maladministration in the matter on the part of the Agency and dispose of the complaint as not tenable."
5. In 1989, Federal Service Tribunal Islamabad on similar two appeals of Mrs. Shamim Zafar Vaince and Mrs. Zehra Jafry v. Finance Division also upheld the stand taken by the Finance Division and rejected the appeals of the two ladies for grant of house rent allowance.
6. As for the demand for allotment of independent houses to both husband and wife or provision of a house to them on the basis of their joint entitlement, it is also not covered by the existing policy of the Ministry of Works. However, that Ministry may be impleaded as party to express their view point.
7. In view of the above facts it is submitted that the rule of the Government which bars admissibility of house rent allowance to husband/wife if the other spouse is in occupation of a Government residence, is based on rationale and the same does not conflict with the Islamic Injunctions or any provision of the constitution. It is, therefore, prayed that the honourable Federal Shariat Court may kindly reject the claim of the petitioner as the same is not covered by the rules/policy of the Government".
(c) Comments on behalf of Government of Punjab in Shariat Petitions Nos.6/I of 1994, 8/I of 1994 and 12/I of 1994 dated 23-4-1997
REPORT
"The Government of the Punjab does not allow House Rent Allowance to both the husband and wife if they are living together in a residential accommodation provided by the Government at the same station of posting. House Rent Allowance shall be admissible to any one of them who does not reside in the Government accommodation (Annex: 'C') Parawise Comments:
1. No comments.
2. No comments.
3. That House Rent Allowance is a compensatory allowance and is paid in lieu of government accommodation. Admissibility of House Rent Allowance to both the husband and wife if none of them is provided with the government residence, is a facility which enables them to go for better accommodation.
4. That both husband and wife if not provided with Government accommodation, shall each be allowed House Rent Allowance on the same place of posting.
5. No comments.
6. As in para 4 above.
7. As admitted by the petitioners themselves that House Rent Allowance would be allowed to both husband and wife in case they are not provided government accommodation. They are at liberty to get accommodation of their choice out of the House Rent Allowance admissible to them under the Government policy or live in their own house.
8. As stated in preceding paragraphs government has been trying to accommodate civil servants to the maximum within the available resources and there is no intention to violate any Article of Constitution of Islamic Republic of Pakistan.
9. No comments being legal.
In view of the above, it is prayed that the Shariat Petition has no merit because House Rent Allowance is a compensatory allowance in lieu of Government accommodation. If accommodation is not provided, both husband and wife are allowed House Rent Allowance".
(d) Comments of Khyber Pakhtunkhwa Government (N.-W.F.P) in Shariat Petition No.6/I of 1994 dated 13-9-2007.
(e) Comments of Finance Department Government of Khyber Pakhtunkhwa (N.-W.F.P) in Shariat Petition No.8/I of 1994 dated 3-1-2008
"1. The para contains extracts from Federal Government letters dated 18-8-1973, 8-9-1972 and 20-11-1974 and Federal Government is in better position to confirm the same.
2. The said memorandums are in consonance with the spirit of Islam. Family is the most important social nucleus of Islamic society. Islam does not envisage separate residence for two inseparable components of this basic social nucleus.
Grounds.
(a) Entitlement to separate property does not entail separate accommodation for spouses. Separate accommodations for husband and wife is against the concept of unity of family life.
(b) Right payment of Zakat and Ushr by husband and wife does not imply subject to separate accommodations. Right to separate accommodation by husband and wife goes against the proper brought up and training of children which is the prime joint responsibility of family. Separate House Rent Allowance for husband and wife at the same working station may envisage separate living which may encourage physical separation and consequently may become a cause of permanent separation.
(c) Common accommodation at the same working station is not only in interest of public but also in the interest of husband, wife and their children."
(f) Comments of Finance Department Government of Khyber Pakhtunkwa (N.-W.F.P.) in Shariat Petition No.12/I of 1994 dated 8-1-2008
"1. The para contained extracts from Federal Government letter dated 20-11-1974 and 25-8-1991 and this Department is of the view that it is in consonance with injunction of Islam.
2. The said memorandums are in consonance with spirit of Islam. Family is the most important social nucleus of Islamic society. Islam does not envisage separate residence for two inseparable components of this nucleus.
3. Government of N.-W.F.P. (Khyber Pakhtunkhwa) has issued policy instructions through letters strictly in line with Federal Government policy referred in the para.
4. Correct, the said Office Memorandum is operational and effective and Government of N.-W.F.P. (Khyber Pakhtunkhwa) holds that the same does not require amendment.
5. As per Rules of Business Finance Division's issues all such instructions with the approval of Competent Authority and it cannot be termed as violation of Presidential scheme referred to above.
6. It is correct to the extent that if a Muslim civil servant marries more than one woman, amendment in the said policy is required to be made to the extent that his 2nd 3rd and 4th wife should be entitled to separate Government accommodation if she/they are in Government service.
7. Entitlement of single/same accommodation to husband/wife does not fall in the definition of "TATFEF" as Islam does not envisage segregation of husband and wife. It is rather obligatory for them to live together for proper brought up of children and for discharge of mutual conjugal obligation.
8. The challenged part is strictly in consonance with the basic concept of unity of family.
9. Article 35 of Constitution does not envisage separate residence for spouses of a family.
10. Same as in para 8 above.
Pray has no solid grounds.
(g) Comments on behalf of Sindh Government in Shariat Petitions Nos.6/I of 1994, 8/I of 1994 and 12/I of 1994 dated 12-11-2007
"1. That the petitioner has challenged the provision of rules contained in clause (ii) of the Finance Division's O.M. No.5(170-Gaz.Imp(I)/73 dated 20-11-1974 and first part of the O.M.No.2(1)R.5/91 dated 25-8-1991, which bars admissibility of house rent allowance to husband/wife if the other spouse is in occupation of a Government Residence. The petitioner has held that the said provision of rules is against the spirit of Qur'an and Sunnah. The petitioner has prayed that the rule in question may be declared as cancelled enabling the husband/wife to avail house rent allowance/house even if the other spouse is provided with Government residence.
2. That the Finance Division is concerned with the element of house rent allowance. Position in this regard is explained below.
3. That under the existing orders/instructions house rent allowance is admissible to a Government employee not provided with the government accommodation. In case of husband and wife, when both are serving members and posted at the same station and Government accommodation is not provided to either of them, house rent allowance is admissible to both the spouses. However, if both are living together at the same station in the Government accommodation provided to one of them, house rent allowance is not admissible to the other spouse even if the station is a specified one. The rationale of the said rules is as follows:---
"(i) House Rent Allowance is a compensatory Allowance and is paid in lieu of the government accommodation. Admissibility of house rent allowance to both the husband and wife if none of them is provided with the Government residence, enables them to hire a private house as rentals of the housing units in the open market are considerably high.
(ii) Husband and wife unless legally separated form a single family unit and reside together. When official accommodation is provided to one of them, the other is not required to hire/get a house, and hence house rent allowance or independent house for the other is not warranted.
(iii) Second part of Finance Division's O.M. date 25-8-1991 permits house rent allowance to a spouse in case of legal separation and not ordinary separation.
(iv) Though all the Government employees are entitled to official accommodation but Government provides accommodation to a small portion of the employees due to limited availability of housing units. The rentals levels in the open market being considerable high, the husbands/wives who have been provided government accommodation are in an advantageous position compared to those who have not been provided the housing facility.
4. That it is submitted that the rule disputed by the petitioner was reviewed by Finance Division at various occasions but it was not found desirable to amend the rule for the reasons mentioned above. The issue was also raised with the honourable Wafaqi Mohtasib by a few complainants. However, the honourable Wafaqi Mohtasib in his findings on two complaints rejected the demand with the following observations:
"The complaint is for the grant of extra benefit which question relates to terms and conditions of a Government Servant. I do not find any maladministration in the matter on the part of the Agency and dispose of the complaint as not tenable."
5. That in 1989, Federal Service Tribunal Islamabad on similar two appeals of Mrs. Shamim Zafar Vaince and Mrs. Zehra Jafry v. Finance Division, also upheld the stand taken by the Finance Division and rejected the appeals of the two ladies for grant of house rent allowance.
6. That as for the demand for allotment of independent houses to both husband and wife or provision of a house to them on the basis of their joint entitlement it is also not covered by the existing polity of the Ministry of Works. However, that Ministry may be impleaded as party to express their view point.
In view of the above facts, it is submitted that the rule of the Government which bars admissibility of house rent allowance to husband/wife if the other spouse is in occupation of a government residence, is based on rationale and the same does not conflict with the Islamic Injunctions or any provision of the constitution .
It is, therefore, prayed that the Honourable Federal Shariat Court may kindly reject the claim of the petitioner as the same is not covered by the rules/policy of the Government."
(h) Comments of Finance Division Government of Pakistan (Again Submitted) in All the Shariat Petitions on 15-10-2008.
"Preliminary Objections:
The appeals are not maintainable for the following reasons:---
(i) This appeal is time barred by limitation.
(ii) The appeal of the appellant is in sheer violation of the Federal Government's instructions/rules/orders.
(iii) The appellant was a civil servant of the Federal Government and was subject to rules making authority of Federal Government (Finance Division) under Civil Servants Act of 1973.
Comments on Appeals:
The Government employees are entitled to House Rent Allowance @ 45% of the minimum stage of the relevant Pay Scales at 14 big cities and @ 30% of the minimum stage of the relevant Pay Scales in small cities. However,…
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