2020 PLP (C (PLC(CS)N)

WAQAR AHMAD SETH, J.

Through this single judgment, we intend to decide the instant writ petition as well as connected Writ Petitions bearing Nos. 723, 735, 960-P of 2015, 2449, 4872, 4875-P of 2016 and 446-P of 2017, as identical question of law and facts are involved therein.

2. Petitioner, Muhammad Farman Ali, Assistant, Provincial Assembly, Khyber Pakhtunkhwa, has filed this constitutional petition with the prayer to direct the respondents to act justly, fairly and in accordance with law and rules and allot him Government Residential Accommodation, as his juniors were allotted the same.

3. Facts, in brief, relevant for the disposal of this writ petition are that, petitioner being Provincial, Government; employee had applied for Government Residential Accommodation vide application No. PA / NWFP / Admn / 97 / 10146 dated 27.05.1997, and was placed at serial No. 1582 of the waiting list, prepared for the allotment of residential accommodation. It is averred that respondents Nos.4 to 9 being junior to petitioner have been allotted government accommodation against which petitioner approached Chairman, Review Committee, but no heed was paid, hence having no alternate and efficacious remedy, petitioner filed the instant writ petition. Writ Petition No.723-P of 2015. Petitioner, Muhammad Arif, Naib Qasid, applied for official accommodation in the year 29.10.2009, but despite his repeated applications/request to official respondents, he wasn't given the said facility and respondent No.4, who being junior to petitioner availed the accommodation, hence the instant writ petition. Writ Petition No. 735-P of 2015. Petitioner, Khurshid Anwar, Senior Clerk, Directorate of Labour, Department, Peshawar, had applied for Government, Residential Accommodation in the year 1994, but till date he hasn't been provided the said facility, despite repeated request. Writ Petition No. 960-P of 2015. Petitioner, Habibullah, Senir Physical Education, Teacher, BPS-16, applied for official residential accommodation in the year 29.11.1993, but till date, he hasn't been provided the said accommodation, despite his repeated application. Writ Petition No. 2449-P of 2016. Petitioner, Salahuddin, Additional Secretary, BPS-19, was allowed Bachelor, Officer Room No. 14, Block-A, NC, Flats, Peshawar, has applied for conversion of said facility to Bungalow / House meant for officers BPS-19, which was approved by the Competent Authority, but no heed was paid, hence the instant writ petition. Writ Petition No. 4872-P of 2016. Muhammad Sohail Khan, Stenographer, BS-12, has applied for official accommodation i.e. Quarter No. D-8 Warsak Road, Civil/Irrigation Colony, vide application dated 2.12.2016. It is averred that on 8.2.2012, father of petitioner applied for transfer of said quarter to his name, and sufficient time has been lapsed, but in vain, hence, the instant writ petition. Writ Petition No. 4875-P of 2016. Ziaullah, Naib Qasid, has applied for official accommodation i.e Quarter No. F-24 Warsak Road, Civil/Irrigation Colony, vide application dated 02.02.2016. It is averred that on 8.2.2012, father of petitioner applied for transfer of said quarter to his name, and sufficient time has been lapsed, but in vain, hence, the instant writ petition. Writ Petition No.446-P of 2017. Syed Saadat Ali Shah, Computer Operator BS-16, petitioner herein, vide his application dated 29.4.2009, had applied for official accommodation and vide allotment notification dated E.09ADMN)S-III/10/C.Q, dated 8th January, 2010, the petitioner has been allotted quarter No. S-III, Civil Quarters, Kohat Road, Peshawar, but the same could not be availed due to litigation and thereafter, despite several applications, no heed was paid, inspite of the fact that juniors to petitioner have been allotted the accommodation, hence having no other efficacious remedy, filed the instant writ petition.

4. Comments were called from respondents, which they furnished by stating that petitioner / applicant is at serial No. 1477 of the waiting list and that petitioner will be allotted the desired accommodation on his own turn.

5. While filing comments in Writ Petition No. 723-P of 2015, stated that the said quarter was allotted to one Muhammad Ayub, who was on top of the merit list, but he did not occupy the same hence was allotted to respondent No.4, by the competent authority keeping his genuine problems of treating his ailing mother. Petitioner is at serial No.760, and will be allotted official quarter on his own turn.

6. Filing comments to Writ Petition No. 735-P/2015, states that petitioner is at serial No.1476 of the waiting list and will be allotted accommodation on his turn.

7. In comments to Writ Petition No. 960-P/2015, respondents by negating the stance of petitioner submitted that, presently petitioner is at serial No.1016 of the waiting list and is very junior and will be accommodated on his own turn.

8. While filing comments to Writ Petition No. 2449- P/2016, they states that petitioner has requested for exchange of his accommodation, however, his case was proceeded and filed on the plea that both of accommodation were not of same type and was not covered under the rules. The letter dated 27.11.2015, regarding exchange of flat contains only recommendations of worthy chief minister, approval of CM on such like cases is solicited on executive summary and in the instant case, summary was proceeded, however, House No. 08/C/2 Phase-V Hayatabad is not available for further allotment.

9. In comments to the Writ Petition No. 4872-P/2016, states that father of petitioner filed application for transfer of Quarter No. D-8 Warsak Road, Civil Colony in the name of petitioner and his application was duly processed and was filed being pre-mature. That the reference FIR has been lodged due to some terrorist attack on police station, therefore, enmity in this respect is totally denied.

10. Filing comments to the Writ Petition No.4875-P of 2016 respondents submitted that father of petitioner applied for transfer of Quarter No. F-24 Warsak Road, Civil Colony in the name of petitioner, however, according to defunct Allotment Rules, 1980, the real son / daughter of the retired government servants was entitled for out of turn accommodation subject to his / her retirement. That petitioner applied for allotment of residential accommodation / transfer of the said quarter under rule-6(6) of the Allotment Rules, 2015, which provides that "the merit list would be followed strictly without any exception, however, in case of grave security concerns to the life of civil servant / his family the chief secretary and secretary administration, would have discretion to adjust the officer / officers.

11. While filing comments to Writ Petition No. 446- P/2017, by negating the stance of petitioner they states that quarter No. S-III/10 Civil Quarters was allotted to the petitioner out of turn basis, subject to vacation, however the same was not vacated due to litigation and the petitioner could not occupy the same, which was later on withdrawn, vide order No. E.O (Admn) S-III/10/C.Q dated 9th January, 2011. That petitioner would be entitled for exchange if otherwise he occupied quarter No. S-III/10 Civil Quarter.

12. We have heard learned counsel for the parties and perused the available record.

13. In order to settle down the issue of residential accommodation at Peshawar, which is increasing day by day due to undue favour and interference of the influential bureaucracy, political authorities and the Government itself. We are of the view that the phrase used by the concerned authorities, while allotting the residential accommodation under the rules, "out of turn" has created problems rather nuisance in the system.

14. For the purpose of allotment of residential accommodation at Peshawar, initially we were having rules commonly known as Residential Accommodation at Peshawar, (Procedure for Allotment) Rules, 1980. These rules were enacted in exercise of the powers conferred by section-26 of the Khyber Pakhtunkhwa, Civil Servants Act, 1973, and in supersession of the rules, for the allotment of civil clerk's quarters, Kohat Road Peshawar. Subsequently, the Residential Accommodation at Peshawar (Procedure for Allotment Rules), 2015, were introduced, but the same was declared as un-constitutional, illegal, unlawful and against the fundamental rights of civil servants in Writ Petition No.3309-P of 2015, decided on 12.01.2017.

15. The phrase 'out of turn' in its general meanings reflects that it's a favour, based on nepotism and favoritism. This phrase for the first time appeared in the Rules, 1980, rule-4 which reads as under:- "Subject to availability of accommodation, a civil servant shall be allotted a residential accommodation in accordance with the provisions of these rules and in the order of merit assigned to him under rule

7. Provided that where a civil servant to whom a residential accommodation has been allotted retires or dies during service, the real son or daughter of the retired or deceased allottee or his / her spouse may be allotted, out of turn, an accommodation of his / her entitlement, subject to the condition that he/she is otherwise eligible for allotment of residential accommodation under these rules. (underline is by us to have emphasis)

16. The phrase "out of turn" was used for a particular purpose, given in the first proviso which was introduced vide Notification No.EO(S&GAD)34-M dated 20.2.1992 for a particular category of employees, but the said phrase was misused by adjusting the near and dear ones, on the recommendations of Senior bureaucrats, political influential people and the sitting Government. No where the merit and eligibility criteria was followed.

17. The learned AAG along with departmental representative of the Estate Department is of the view that the employees to whom "out of turn" allotment has been made are not present before the court. We are of the view that admittedly, they are "out of turn" allottees and as such illegal beneficiaries hence there is need of hearing them in view of the reported judgment of the apex Court wherein "out of turn" promotions were set aside and subsequently their review on the point that they have been condemned unheard has been dismissed on the point that they need no hearing as they were illegal beneficiaries, reference is made 2013 SCMR 1752, 2015 SCMR

456. Even otherwise, the "out of turn" allottees would plead the applicability of principle of locus poenitentiae but the same power of rescinding till a decisive step is taken. It is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal, then perpetual rights cannot be gained on the basis of an illegal order. 17 (sic) Learned AAG along with departmental representative i.e. Estate officer failed to show us any reasonable, justified and legal justification for allotting an accommodation to the allotted one, "out of turn". In the rules, which were in vogue right from 1980, only "out of turn" allotment is permissible to the retired / deceased employee's sons/daughters/spouse, who are in service. The data so provided in all the connected writ petitions reflects that "out of turn" allotments have been made on the recommendations of political influential as well as the sitting government and bureaucracy which are not denied by the AAG. The public functionaries had to reinforce good governance, observe rules strictly and adhere to rules of law in public service. The public functionaries were not obliged to follow illegal orders of higher authorities.

18. In view of above this Court is left with no option but to declare "out of turn" allotments as illegal and unlawful except to the retired / deceased employees, offspring / living spouse and designated houses for the Judges of the Superior Judiciary. Moreover, protection is also given to the Court orders / judgments in this respect whereby employees were given allotment, after considering the facts on record. All "out of turn" allotments, so made since January 2011, stand cancelled. The respondents are directed to constitute a Committee consisting of Four BPS-19/20 Officers for allotment to all civil servants but in accordance with the law and the rules, on the basis of seniority, to be determined from the date of application for allotment, category wise, within a period of one month, positively. Meanwhile, no one should be dispossessed from the possession / allotment of "out of turn" employees. The decision of the Committee shall be implemented and "out of turn" allottees be dispossessed and possession be handed over to the allottees within a period of one month, thereafter. ZC/151/P Petition accepted.