2013 PLP 311 (YLR)

SHAUKAT AZIZ SIDDIQUI, J.

Through this single judgment following Writ Petitions are being disposed of, together, as common question of law and facts are involved in all the petitions:-- (i) Writ Petition No.2044 of 2011, titled Mir Laeeque Shah v. CDA and others (ii) Writ Petition No.1141 of 2011, titled Muhammad Jalal Sikandar Sultan v. CDA and others (iii) Writ Petition No.2051 of 2009, titled Imtiaz Ahmad Vohra v. CDA, (iv) Writ Petition No.2052 of 2009, titled Ghulam Dastgir v. CDA, (v) Writ Petition No.2053 of 2009, titled Ch. Muhammad Ali v. CDA, (vi) Writ Petition N6.2054 of 2009, titled Atta Ullah Khan v. CDA, (vii) Writ Petition No.2055 of 2009 titled Zafar Hussain v. CDA, (viii) Writ Petition No.2056 of 2009, Malik Zafar Iqbal v. CDA, (ix) Writ Petition No.2057 of 2009 titled Qamar Zaman Ch. v. CDA, (x) Writ Petition No.2058 of 2009, Khalid Khan v. CDA

2. Petitioners served the respondent authority, CDA, on deputation basis for the period and designation mentioned as under:-- Sr. No. Name Against post/ designation Period

1. Mir Laeeque Shah Director Lands and Rehabili-tation 10-8-2002 to 31-12-2003

2. Muhammad Jalal Sikandar Sultan Director Lands and Rehabili-tation 10-8-2002 to 31-12-2003

3. Imtiaz Ahmed Vohra Director Planning and Evaluation 1-2-1997 to 4-9-2001

4. Ghulam Dastgir Member Administration 28-8-2002 to 1-9-2003

5. Ch. Muhammad All Director 26-3-1999 to 9-10-2002

6. Atta Ullah Khan Member Administration 7-11-2000 to 11-2-2002

7. Zafar Hussain Director Lands and Rehabili-tation 1997 to 1999 (one year)

8. Malik Zafar Iqbal Deputy Commissioner 5-1-2000 to 18-1-2003

9. Qamar Zaman Chairman, of authority, CDA 2-5-1998 to 28-10-1999

10. Khalid Khan Director 1991 to 1994

3. Grievance put forth through instant petitions is that, despite their entitlement petitioners have been denied, right of allotment of plots and discriminatory treatment is being meted out to them, as similarly placed persons have already been extended this benefit. Learned counsel for petitioners submitted that, petitioners by virtue of the definition of the "CDA employees" as envisaged in the regulation No.2(f) of the Land Disposal Regulations, are deemed to be employees of the CDA, for all interests and purposes. They became entitled to the allotment of residential plots, under the Housing Foundation Scheme against 20% quota reserved for the CDA employees, which term includes the deputationists as well. The cut-off date by the respondent is not valid in law and even the officials who had only 6 months service to their credit in the CDA have been allotted plots although they joined CDA long after 28-11-2005. The learned counsel for petitioners further contended that the cut-off date of 28th of November, 2005 is not prescribed by any Statute. Inviting of applications etc. by particular dates are merely for administrative convenience, and would not affect the rights of any person, who is otherwise, entitled to the allotment of residential plot. The Land Disposal Regulation, 2005 or the Land Disposal Regulations, 1993 had no application in the matter. The "Scheme" was complete and exhaustive which was required to be followed in letter and spirit. Learned counsel for petitioners prayed that impugned orders dated 8-6-2011 and 15-8-2007 may be declared to be without lawful authority and of no legal effect.

4. Conversely learned counsel for respondents contended that under the laid down criteria only those deputationist were eligible for allotment of plots out of CDA employees quota, who were in CDA service as on 28-11-2005 at the time of pronouncement of judgment of Hon'ble Supreme Court of Pakistan. Since, petitioners had left the CDA before the above mentioned cut-off date, therefore, they are not eligible. The criteria has been laid down by the board of CDA, in the light of judgment of august Supreme Court of Pakistan and Land Disposal Regulation, 2005. The authority has acted fairly, justly and in accordance with the dictum laid down by the Hon'ble Supreme Court. The CDA authority is not in a position to allot plot to every deputationist out of CDA employees quota, by ignoring the regular employees of the CDA. Moreover, the allotment of plot is not a vested right of every employee for which constitutional jurisdiction of High Court may be invoked. The learned counsel for respondents prayed for dismissal of the writ petitions. I have heard the learned counsel, appreciated the pleadings, took guidance on the issue, from the different pronounce-ments of Hon'ble Supreme Court, Lahore High Court and Islamabad High Court, and perused the documents annexed.

5. Issue brought before this court is an old one, and remained subject of judicial review, therefore, I feel it necessary to provide historical perspective of the matter. Ministry of Housing and Works, as far back as in October, 1988 planned to construct houses in Islamabad for allotment and ultimate alienation, on ownership basis to the public servants. The implementation of the above scheme conceived in the Ministry of Works was entrusted to a cell created in the said Ministry. The said cell was abolished on 26th of March, 1990 and its functions were entrusted to the Federal Government Employees Housing Foundation, a company incorporated under the Companies Ordinance, 1984. In its meeting held on 24th of April, 1990, the Housing Foundation decided to allot 20% of the total plots, placed at its disposal, to the CDA employees. In this regard first priority was to be given to those employees who did not own house, either in their name or in the name of their family members, in any major city of Pakistan and second priority was to be given to those employees who do not have a house in Islamabad either in their name or in the name of any member of the family. The seniority inter se of the applicants was to be determined keeping in view the age, i.e. the person older in age shall rank senior to the rest. Reference to this "Scheme" has also been made by the honourable High Court vide order dated 21-1-2004 and by the honourable Supreme Court in its order dated 28-11-2005. The deputationists initially were not being considered for allotment of plots, despite the fact that they were employees of the CDA as defined in Regulation No.2 (f) of the Land Disposal Regulation which reads as under:-- "C.D.A employees means all regular employees of CDA including deputationists." Resultantly, this gave rise to institution of litigation before the superior courts. In the first round of litigation, the Hon'ble Lahore High Court, vide order dated 23-5-2000, while disposing of Writ Petition No.760 of 2000 and 11 other identical writ petitions, observed as under:-- (1) I, therefore, without prejudice to the rights of the employees, who have already been allotted plots and are not party to this petition, refer this matter to the Chairman, CDA, Islamabad for redemption of the rights of the petitioner 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. It was further observed that: "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." Subsequently, while disposing of the Writ Petitions Nos.299, 498/98 following order was passed:-- "Notwithstanding the earlier refusal to the petitioners of the allotment of plots in the housing scheme of Federal Government Employees Housing Foundation, if they, in the light of the criteria for allotment of plots in the housing scheme were found eligible and entitled to the allotment in Phase-I or Phase-II, they would be accommodated on priority basis against available plots."

6. The respondent-authority refused to allot plots to the deputationists, matter was again taken to the Hon'ble Lahore High Court Rawalpindi Bench, by way of filing Writ Petitions Nos. 3041 of 2001, 3579 of 2001, 588 of 2002, 589 of 2002, 1071 of 2002 and 790 of 2003 and vide judgment dated 21-1-2004, learned Single Bench of Lahore High Court, issued following directions:-- "All these writ petitions accordingly are disposed of with the direction that after ascertaining the exact No. of the balance available plots in the said 20% quota, the case of all these petitioners be considered for allotment in accordance with the eligibility criteria already drawn by the CDA and each individual case be decided accordingly. No orders as to costs.

7. This judgment was assailed by the CDA before Hon'ble Supreme Court of Pakistan by filing C.P.L.As. Nos.741, 742, 743 and 744 of 2004 but Hon'ble Supreme Court upheld the judgment impugned through CPLAs vide judgment dated 28th of November, 2005. For convenience, paras-5 and 6 of the above referred judgment are reproduced as under:--

5. On plain perusal of the above provisions, we do not find any legal bar or impediment in the way of the petitioner for allotment of plots in favour of its employees, who have already been adjudged to be entitled as such. As observed earlier, petitioner by not challenging the earlier judgments of the Lahore High Court has accepted the same, which are binding on it for all intents and purposes.

6. Learned counsel for private-respondents had a further grievance that the respondents were being unreasonably discriminated on account of cold-shoulder and apathy on the part of the Capital Development Authority, which can hardly be appreciated. Suffice it to say, CDA has no lawful justification for refusal of entitlement to allotment of plots in favour of the private respondents, which stands already determined and is a past and closed chapter. In any event, the finality attached to the earlier judgment of the Lahore High Court cannot be re-opened or re-agitated in the present set of peti-tions, which do not raise any ques-tion of law of public importance, these petitions are dismissed and leave to appeal refused.

8. The Islamabad High Court vide order dated 6-3-2009 also declared the deputationists, entitled to the allotment of plots. The order of the learned Single Bench was upheld by the learned Division Bench on 21-5-2009 as ICA filed by respondent was dismissed. The august Supreme Court vide order dated 16-2-2010 refused to interfere in the judgments impugned. It is worth to mention here that IHC, vide judgment dated 21-4-2009 passed in Writ Petition No.1637 of 2008, declined to issue writ in favour of deputationist, on the ground that, petitioner of said petition, had left CDA much before the cut-off date. Operative part of judgment is as under:-- "No doubt, deputationist, who was working with the Capital Develop-ment Authority on 25-5-2004 was entitled to get a plot but the petitioner having been repatriated to his parent Department in October, 2000, cannot claim the benefit of circular dated 25-5-2004. There is no merit in this writ petition, which is dismissed with no order as to costs."

9. As recorded under Para 2 of instant decision, all the petitioners, served CDA much prior to cut-off date. Benefit of the allotment of plots cannot be extended, invariably, to all the employees whether, regular or deputationist, unless they fulfil the prescribed criteria. If, argument of the learned counsel of the petitioners is accepted, then all the deputationist who served CDA in different cadres during past decades shall become entitled to allotment of plots. By providing cut-off date, in fact, anomaly of the situation has been avoided, which to my mind is based on reasonableness and standard on rationale.

10. As far as issue of discrimination is concerned, needless to observe that, it arises only, if meted out to the similarly placed persons. I failed to understand that under which analogy, petitioners are praying for equal treatment, when it is the case of petitioners themselves that they had left CDA, much prior to cut-off date. Learned counsel for CDA pointed out that judgment dated 21-4-2009 of (dissolved) Islamabad High Court has attained finality, and case of present petitioners is at par with the petitioner of Writ Petition No.1637 of 2008. Thus for the foregoing reasons, I declare that petitioners are not entitled to allotment of plots, resultantly writ petitions are dismissed. KMZ/148/Isl Petitions dismissed.