2023 PLP (C (PLC(CS)N)

M. TABASSUM AFTAB AIVI, CJ.

The supra titled writ petitions have been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974.

2. As common questions of facts and law are involved in the instant writ petitions, therefore, we proposed to decide the same through this single judgment.

3. Precise facts of Writ Petition No.1261/2011, are that petitioners are permanent employees of Azad Jammu and Kashmir Legislative Kssembly. They were allotted official accommodation by Accommodation Allotment Committee-respondent No.5, in newly constructed residential houses, situated in Narul Jalalabad, Muzaffarabad, according to merit and seniority. The petitioners are residing along with their families in Houses Nos.C2-5, C2-22, C2-28, C3-43, C3-54, C3-44, C4-5, C3-29, C2-37, and C4-35, respectively. It is maintained that due to shortage of official residential accommodation in Muzaffarabad, and enormous pressure for Allotment of official residences by various organizations of employees of Azad Jammu and Kashmir, Government-respondent is trying to find a way out to get the accommodation allotted to petitioners be vacated under any pretext whatsoever. It is further maintained that for the purpose, Accommodation Allotment Committee-respondent No.5, referred the matter to Law Department-respondent No.3, for opinion as to whether the employees of certain offices/institutions including Azad Jammu and Kashmir Legislative Assembly, were eligible for allotment of official residential accommodation under prevailing Rules? The petitioners, therefore, were declared not entitled to official residential accommodation being employees of the Azad Jammu and Kashmir Legislative Assembly, as not covering in term "Subordinate Offices", hence, the instant constitution petition.

4. The respondents despite obtaining several opportunities failed to file written statement, therefore, their defence was closed vide order dated 21.11.2013.

5. The summary of Writ Petition No.1262/2011, is that petitioners are permanent employees of Public Service Commission, Ombudsman Secretariat, Hydro Electric Board and Local Govt. Board of Azad Jammu and Kashmir. It is stated that according to merit and seniority maintained for allotment of official accommodation, petitioners were allotted Houses Nos.C3-52, C2-27, C2- 11, C2-12, C2-17, C3-6, C5-12, C5-20, C5-17, C2-14, C2-25, A/3, C1-3 and C3-10, situated in Narul Jalalabad, Muzaffarabad, by Accommodation Allotment Committee-respondent No.5, through different orders. The other contents of the instant writ petition are similar to the contents of Writ Petition No.1261/2011, therefore, the same are not repeated here for the sake of brevity and convenience.

6. The respondents despite obtaining numberless opportunities failed to file written statement, therefore, their right of defence was closed vide order dated 21.11.2013.

7. Mr. Abdul Rasheed Abbasi, Advocate, appearing on behalf of petitioners, vehemently argued that as per Rule 3 of the Azad Jammu and Kashmir Allocation (Accommodation) Rules, 1981, all Government Servants employed in the Secretariat/Attached Departments and Subordinate Offices of Azad Government of the State of Jammu and Kashmir, are eligible for official accommodation. The learned counsel emphasized that in the Rules, supra, employees of Special Institutions have been excluded, which provision is discriminatory and against command of the Interim Constitution, 1974. He maintained that petitioners have a right of affording opportunity of hearing and presenting their claim to Allotment Committee before any adverse decision, hence, craved for acceptance of writ petitions. The learned counsel in support of his contentions referred to and relied upon the following case law:- i. Ehtesab Bureau Azad Jammu and Kashmir v. Ch. Muhammad Hanif (2004 YLR 2278). ii. Azad Government and others v. Abdul Kabir Qureshi and others (1995 PLC (C.S.) 46).

8. Mr. Asghar Ali Malik, the learned counsel appearing on behalf of respondents submitted that no any final order has been passed by respondents as yet, hence, writ petitions are pre-mature. He further contended that in case of any adverse final order, petitioners may challenge the same as per Allocation Rules, 1981, who prayed for dismissal of writ petitions. The learned counsel in support of his contention referred to and relied upon the following precedents:- i. Jawad Hussain Jafri v. Azad Government and 4 others (1999 MLD 33). ii. Pir Ali Jan Shah v. Chairman Municipal Committee and others [1992 SCR 351].

9. We have perused the contents of writ petitions and examined the appended documents made available with utmost care.

10. A contemplate perusal of record reveals that petitioners are permanent employees of the Azad Jammu and Kashmir Legislative Assembly, Public Service Commission, Ombudsman Secretariat, Hydro Electric Board and Local Govt. Board of Azad Jammu and Kashmir. Admittedly petitioners were allotted official accommodation by Accommodation Allotment Committee-respondent No.5, in newly constructed residential houses, situated in Narul Jalalabad, Muzaffarabad, according to merit and seniority. The matter was, however, referred to Law, Justice, Parliamentary Affairs and Human Rights Department-respondent No.3, for opinion as to whether the employees of certain sub-ordinate offices/institutions including Azad Jammu and Kashmir Legislative Assembly were eligible for allotment of official houses under the Azad Jammu and Kashmir Allocation (Accommodation) Rules, 1981. The Law Department elucidate the term subordinate offices and its opinion is reproduced herein below:- "The term subordinate offices do not include the special institutions, semi autonomous, autonomous bodies and corporations. The special institutions, semi autonomous, autonomous bodies and corporations are independent organs in sphere of their business under their relevant laws and do not fall within the purview of subordinate offices. Furthermore Azad Jammu and Kashmir Legislative Assembly is special institution of Law Department under Rules of Business and mentioned as Secretariat under Azad Jammu and Kashmir Interim Constitution Act, 1974. However, the Azad Jammu and Kashmir Allocation (Accommodation) Rules, 1981, framed by the Services and General Administration Department without backing of a substitutive law and under Rule 13(c) and (d) of Azad Jammu and Kashmir Rules of Business, 1985, the service matters, terms and conditions of services or the statutory rights and privileges of Government servants and interpretation thereof is the jurisdiction of Services and General Administration Department?" Therefore, on the basis of the aforesaid opinion, petitioners being employees of special institutions felt threaten to be dispossessed from official houses, who constrained to file the instant petitions. For appreciation, it would be appropriate to reproduce Rule 3 of the Azad Jammu and Kashmir Allocation (Accommodation) Rules, 1981, which speaks as under:- "All the Government Servants employed in the Secretariat/Attached Departments/ Subordinate Offices of Azad Government of the State of Jammu and Kashmir, shall be eligible for accommodation." A bare reading of the aforesaid Rule, makes it abundantly clear, that persons employed in the Secretariat/Attached Departments/Subordinate Offices of Azad Jammu and Kashmir are entitled to official accommodation. The Legislative Assembly is special institution of Law, Justice, Parliamentary Affairs and Human Rights Department, while Public Service Commission and Ombudsman Secretariat are special institutions of Services and General Administration Department, whereas Local Govt. Board is special institution of Local Government and Rural Development Department, while Hydro Electric Board is special institution of Electricity Department as per Schedule-I of the Azad Jammu and Kashmir Rules of Business, 1985. The petitioners are employees of the aforesaid Institutions.

11. The provisions of Rule 3, referred to herein above are not happily worded, which are ex-facie against clause 15 sub-Article (4) of Article 4 of the Interim Constitution, 1974, which enshrined that all State Subjects are equal before law and are entitled to equal protection of law, who shall not be discriminated against on the basis of sex. The equal protection of law does not envisage that every state subject is to be treated alike in all circumstances, but it contemplates that person similarly situated or similarly placed are to be treated alike. However, reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis. The discrimination means making a distinction or difference between things. The discrimination against a group or an individual implies making an adverse distinction with regard to some benefit, advantage or facility. Discrimination thus involves an element of unfavorable bias and it is in that sense that the expression has to be understood to this extent. However, it becomes an act of discrimination only when it is improper or capricious exercise or abuse of discretionary authority, and the person against whom that discretion is exercised faces certain appreciable disadvantages which he would not have faced otherwise.

12. At the cost of repetition, it is reiterated that petitioners are employees of Legislative Assembly, Public Service Commission, Ombudsman Secretariat, Local Govt. Board and Hydro Electric Board, which are special institutions of Law, Justice, Parliamentary Affairs and Human Rights Department, Services and General Administration, Local Government and Rural Development and Electricity Departments, therefore, are employees of the Government of the Azad Jammu and Kashmir, however, serving in different Government Departments and Institutions, therefore, according to our considered view, all those employees serving in different Departments/Institutions of the Government and getting their salaries/privileges from the Government exchequer should be entitled to allotment of official accommodation owned by the Government according to law. Thus Rule 3, of the Azad Jammu and Kashmir Allocation (Accommodation) Rules, 1981, needs to be amended so that employees of special institutions who are receiving their salaries/privileges from Government exchequer be entitled to official accommodation as well. This aspect of matter, however, shall be considered by respondents.

13. The crux of above discussion is that petitioners shall not be dispossessed from official Houses allotted to them, as per seniority and merit, by respondents without adopting due process of law. The writ petitions are accepted as per observations made in paragraph 12, supra, with no order as to the costs. ZC/44/HC(AJ&K) Petition allowed.