2013 PLP 896 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Civil Appeals Nos. 495 to 499, 501 and 502 of 2012 The private respondents in these appeals are/were employees of Radio Pakistan converted into Pakistan Broadcasting Corporation, Pakistan Telegraph and Telephone Department converted into Pakistan Telecommunications Corporation Limited, National Database and Registration Authority and Water and Power Development Authority and the common question involved in these appeals is as to whether in their capacity as such employees the said respondents are entitled to be allotted residential plots in the Islamabad Housing Scheme Phase-IV for Federal Government Employees launched by the Federal Government Employees Housing Foundation, Islamabad from the 75% quota mentioned in paragraph No.1.1(a) of the Terms and Conditions of the said Scheme or from the 8% quota mentioned in paragraph No.1.1(b) of the Terms and Conditions of the that Scheme. Upon refusal of the appellant, i.e. Federal Government Employees Housing Foundation Islamabad to entertain the respondents' claim for allotment in terms of paragraph No.1.1(a) of the Terms and Conditions of the that Scheme and upon insistence of the appellant that the case of the respondents attracted paragraph No.1.1(b) of the Terms and Conditions of the Scheme the said respondent filed Writ Petitions before the Islamabad High Court, Islamabad which Writ Petitions were allowed by a learned Division Bench of the said Court on 14-3-2012 declaring that the respondents were entitled to be considered for allotment of residential plots from the 75% quota mentioned in paragraph No.1.1(a) of the Terms and Conditions of the Scheme. The appellant, i.e. Federal Government Employees Housing Foundation, Islamabad had assailed the said consolidated judgment passed by the learned Division Bench of the Islamabad High Court, Islamabad before this Court through various Civil Petitions for Leave to Appeal which had been allowed by this Court on 22-5-2012 and leave to appeal had been granted in the following terms:-- "Learned counsel for the petitioner contends, inter alia, that the judgment of the High Court is the result of misinterpretation of Para-1.1(a) and (b) of Allocation/Distribution of the Plots of the Federal Government Employees Housing Foundation, Islamabad, as according to the learned counsel the bodies/organization like PTCL, NADRA, Pakistan Broadcasting Corporation, Afghan Refugees Organization and WAPDA do not fall within the ambit of Para-1.1(a) but falls in Para-1.1(b) referred to above.

2. Points raised need consideration, therefore, leave to appeal is granted. The appeals be heard on the available record with the direction to the appellants to file appeal stage paper-books within a fortnight. Being a short matter let the appeals be fixed within two months." Hence, the present appeals before this Court.

2. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance. It has been argued by the learned counsel for the appellant in all these appeals that the private respondents in these appeals are/were employees of autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government and, thus, they could only be considered for allotment of residential plots in the relevant Scheme in terms of paragraph No.1.1(b) of the Terms and Conditions of that Scheme and that the learned Division Bench of the Islamabad High Court, Islamabad had misdirected itself by deciding the respondents' Writ Petitions only on the basis of the question as to whether the respondents were civil servants or not without appreciating that such consideration was completely extraneous to the actual question involved. As against that the learned counsel for the private respondents has maintained that employees of autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government are civil servants for all intents and purposes and, thus, their claim to allotment of residential plots in the relevant Scheme fairly and squarely fell within the scope and purview of paragraph No.1.1(a) of the Terms and Conditions of the said Scheme and that the learned Division Bench of the Islamabad High Court, Islamabad was quite justified in holding and declaring so.

3. For facility of reference the eligibility criteria contained in the Terms and Conditions of the Islamabad Housing Scheme Phase-IV for Federal Government Employees launched by the Federal Government Employees Housing Foundation, Islamabad is reproduced herewith:-- "TERMS AND CONDITIONS

1. ALLOCATION/DISTRIBUTION OF TIIE PLOTS 1.1 The available residential plots shall be allotted amongst various categories of applicants who fulfill the criteria of eligibility as below:- (a) Employees of Federal Ministries/Divisions/ Attached Departments and their subordinate offices (declared as such and included in the Rules of Business), Members of Regularly constituted groups/services of the Federal Government, and members of Superior Judiciary i.e. Judges of the Supreme Court, High Courts and Federal Shariat Court who were in service on 15-11-2003. 75% (b) Employees of Autonomous/Semi Autonomous Government Organization and Public Sector Corporations under the Administrative Control of Federal Government who were in the service on 15-11-2003. 8% (c) Employees of Constitutional Bodies/Professionals. 5% (d) Retired Federal Government Employees of Ministries/Divisions/Attached Departments and Subordinate Offices. 5% (e) Widows of those eligible Federal Government Employees (of Ministries/Divisions and Attached Departments and Subordinate offices) who died during service. 2% (f) Journalists. 3% (g) Federal Government Employees with major disability. 1% (h) Extremely hardship cases who fulfill the laid down criteria of hardship. 1% A bare reading of the contents of paragraph No. 1.1 of the Terms and Conditions of the relevant Scheme reproduced above quite clearly shows that although the said Scheme was launched apparently for Federal Government Employees yet employees of the Constitutional Bodies/Professionals, retired Federal Government employees of Ministries/Divisions/Attached Departments and subordinate offices, widows of the eligible Federal Government employees, Journalists and those suffering from an extreme hardship were also included in the categories of persons who could apply for allotment of residential plots in that Scheme. We have particularly noticed that in paragraph No.1.1 of the Terms and Conditions of the Scheme no mention whatsoever is made to "civil service" or "civil servant" and, thus, the entire discussion made by the learned Division Bench of the Islamabad High Court, Islamabad in the impugned judgment regarding the private respondents being civil servants or not has been found by us to be completely besides the point apart from being irrelevant. It may be true that a transfer of a civil servant to autonomous/semi -autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government does not affect his terms and conditions of service as a civil servant, as held by this Court in the cases of Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others (PLD 1996 SC 222), Divisional Engineer Phones, Phones Division. Sukkur and another v. Muhammad Shahid and others (1999 PLC(CS) 1208), Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad (PLD 2002 SC 1079) and Abdul Rahim v. Pakistan Broadcasting Corporation through Director-General and 8 others (1992 SCMR 1213), but at the same time it ought not to have been lost sight of by the learned Division Bench of the Islamabad High Court, Islamabad, that eligibility criteria laid down in the Terms and Conditions of the relevant Scheme was not with reference to being a civil servant but was mainly with reference to being employees of different categories and it did not matter whether the applicant was a civil servant or not if his application attracted any of the eligibility criteria contained in paragraphs No. 1.1(a) or 1.1(b) of the Terms and Conditions of the Scheme. The eligibility criteria relevant to the employees was with reference to the employer and not with reference to the applicant being a civil servant or not. Looked at from this angle it is but obvious that 75% quota of plots referred to in paragraph No. 1.1(a) of the Terms and Conditions of the Scheme was reserved for employees of the Federal Ministries/Divisions/Attached Departments and their subordinate offices, members of regularly constituted groups/services of the Federal Government and Members of the Superior Judiciary, i.e. Judges of the Supreme Court, High Courts and Federal Shariat Court whereas the employees of the autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government fell within a separate category contained in paragraph No.1.1(b) of the Terms and Conditions of the Scheme and for such employees a quota of 8% of the plots had been fixed. It is admitted at all hands that the private respondents in all these appeals are/were employees of autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government and, thus, we have entertained no manner of doubt that their applications for allotment of residential plots in the Scheme attracted only paragraph No.1.1(b) of the Terms and Conditions of the Scheme fixing a quota of 8% of the plots. As we have already observed above that the eligibility criteria contained in the Terms and Conditions of the Scheme was focused on the issue as to who was the employer and not on the issue as to whether the applicant was a civil servant or not, therefore, we are constrained to observe that the learned Division Bench of the Islamabad High Court, Islamabad had completely missed the point in issue and the impugned judgment rendered by it was based upon considerations which were hardly relevant.

4. For what has been discussed above these appeals are allowed and the consolidated impugned judgment handed down by the learned Division Bench of the Islamabad High Court, Islamabad on 14-3-2012 is set aside. There shall be no order as to costs. Civil Appeal No. 754 of 2012

5. As the learned Division Bench of the Islamabad High Court, Islamabad rendering the impugned judgment dated 22-5-2012 had proceeded upon the lines and understanding of the Terms and Conditions of the Islamabad Housing Scheme Phase-IV of Federal Government Employees launched by the Federal Government Employees Housing Foundation, Islamabad as held by us in the connected Civil Appeals Nos.495 to 499, 501 and 502 of 2012 decided today, therefore, no occasion has been found by us for interference with the impugned judgment. This appeal is, thus, dismissed with no order as to costs. Civil Petition No. 880 of 2012

6. As the facts and the legal question involved in this petition are not different from those of Civil Appeals Nos. 495 to 499, 501 and 502 of 2012 decided by us today, therefore, this petition is converted into an appeal and the same is allowed and consequently, the impugned judgment passed by the learned Division Bench of the Islamabad High Court, Islamabad on 9-4-2012 is set aside, there shall be no order as to costs. MWA/F-3/SC Order accordingly.