1997 PLP (C (PLC(CS))

4. While disposing of the writ petition a learned Judge in the High Court observed that the directions of the Prime Minister had not been carried into effect through a formally issued order and, therefore, did not create any right. It was further held that the orders of the Prime Minister also did not confer any right for the reason that there was a Government notification in favour of respondent No.3. It was held that the Prime Minister had through another order passed on 14th of January, 1997 affirmed the allotment of house in dispute in favour of' respondent No.3 and in light of this order the orders passed in favour of the appellant did not have any legal Value. It has also been held in the impugned judgment that the appellant is not entitled to Government accommodation because he owns a house in Upper Chatter Housing Scheme. For this reliance has been placed on rule 22 of the Azad Jammu and Kashmir Allocation (Accommodation) Rules. These Rules will hereinafter be referred, for the sake of brevity, as Accommodation Rules.

5. We have heard the learned counsel for the parties at some length. We have been taken through the rules on the subject, which are called the Azad Jammu and Kashmir Allocation (Accommodation) Rules, 1981. We have also examined all the orders passed from time to time.

6. The contention of the appellant is that some points of vital importance were urged before the learned Judge in the High Court but have been left undecided. The assertion is supported by an affidavit. These points have been urged before us with great vehemence. The learned counsel for the Government, Raja Shiraz Kayani, Advocate‑General, and Kh. Shahad Ahmad, Advocate, stoutly defended the order of the High Court.

7. During the hearing of the case it prima facie, transpired that the procedure laid down in the relevant rules for allotment of Government accommodation was not being followed. Therefore, we summoned some record, which has been examined by us.

8. Before taking up merits of the case we may advert to the salient features of the legal provisions on the subject. Apart from the Accommodation Rules, also relevant is a Government Order issued oil 13th of December, 1979 which has been declared to be part of the Accommodation Rules as is provided in rule 5 thereof. According to the aforementioned Government Order, Government accommodation has been divided in six categories which were previously known as Category I, Category II and so on, but are now redesignated as category A, category B and so on. It is laid down in the Order that houses falling in category A, as is the house in dispute, shall be allotted to officers in B‑20 to

22. Houses in Category ' C' can be allotted to officers in B‑15 to

17. The other categories are not relevant to the present case. According to the scheme of the Accommodation Rules allotment of Government residences has to be made on the basis of first come first served (sub! rule (i) of rule 6‑A). However, there is also a special, provision that Chief Executive may allot a house to a Government servant at his discretion sub‑rule (3) of rule 6‑A). It is provided in rule 7 that the Estate office shall maintain a separate waiting list of Government servants for each class of accommodation in bound volumes. Allotments have to be made by Allotment Committees set up for different places. Allotment Committee for Muzaffarabad consists of Secretary Services, Additional Secretary (Services), Executive Engineer (Maintenance Division), who is also designated as Estate Officer, and the Deputy Secretary Services, Member/Secretary. It is laid down in rule 22 that a Government servant who has built or acquired a house at the place of his posting shall not be entitled to Government accommodation. There are also some other provisions but it is not necessary for the disposal of the present case to mention them.

9. Adverting to the merits of the case, we may first take up that part of the writ petition in which the Notification, dated 30th of December, 1996 in favour of respondent No.3 was challenged. The challenge to this allotment was rejected for the following reasons: ‑‑ "The system of the Government and the State runs under a legal process under the Rules and any direction or order recorded by any dignitary or authority having the power to do so, if recorded on a stray application, does not confer any right in presence of a duly issued Government Notification, unless that Notification is rescinded, revoked or quashed by the competent Authority. Thus the contention of the petitioner that the Prime Minister has ordered/directed arrangement of the accommodation in favour of the petitioner, is not acceptable in view of the impugned Government order, moreso when it is duly affirmed later on through another order issued on 14‑I‑1997 affirming that the allotment of House No.2‑A is maintained in favour of respondent No.

3. From the passage extracted above it is clear that the impugned notification was construed as a Government order while it is in fact not so. The notification is available as Annexure 'D' with the writ petition. It recites that the competent Authority had allotted House No.2‑A to respondent No.3. It was stated in para. 7 of the writ petition that allotment in favour of respondent No.3. was made by Secretary Services and an affidavit was also filed to support the contents of the petition. In their written statements the respondents did not deny this averment. It follows that the High Court fell in error in treating the notification to have been issued under authority of the Government, while it was admittedly issued under authority of the Secretary Services. We have also checked‑up from the relevant file that the order of allotment was made by the Secretary Services as is evident from minute No. 13 of the relevant file. We have already noted that the allotments have to be made by the Allotment Committee and not the Secretary Services. It is true that the Secretary Services is the Chairman of the Allotment Committee for Muzaffarabad but that does not authorise him to make allotments himself. Allotment of the house in dispute could only be made by the Allotment Committee after following the prescribed procedure and keeping in view the other factors already referred, particularly the principle of first come first served, grade of the Officer as well as category of the accommodation. It is clear that the Secretary Services acted arbitrarily and without jurisdiction in making the impugned allotment. We have no hesitation in holding that the allotment in favour of respondent No.3 was void ab initio.

10. The matter does not end here. Admittedly respondent N0.3 is in B‑17 while the house in dispute is of category 'A'. As already noticed a house in category ' A' can only be allotted to an officer who is in B‑20 or above. We have not come across any provision in the Rules that this condition can be relaxed, although it is provided in rule 6 of the Accommodation Rules that the Government may allot accommodation of a class higher if there is no other officer on the waiting list of that class. This power is vested in the Government while the order has been passed by the Secretary Services and must be held to be illegal for that reason also. The waiting list furnished by the Services Department shows that a large number of senior officers in higher grades than B‑17 are on the waiting list. Another aspect of the matter is that the name of respondent No.3 does not appear to be included in the waiting list while an accommodation can be allotted only to a person in waiting list. It thus becomes clear that Secretary Services not only exercised powers, which were not vested in him but also infringed all the relevant legal provisions. We are constrained to point out that Secretary Services may be the king‑pin the Secretariat but lie clearly is in error about his powers.

11. The legality of the order passed in favour of respondent No.3 was not decided by the High Court although it was duly challenged in the writ petition and arguments were also addressed on this point as is proved by the unrebutted affidavit on the point. However, the learned Judge declared that respondent No.3 was entitled to possession of the house with immediate effect. Seen in light of the fact that the order of allotment in favour of respondent No.3 was void the High Court was not right in declaring that the said respondent was entitled to possession with immediate effect. In view of the clear legal position noticed about the allotment order in favour of respondent No.3 was void and full of illegalities and we must hold it to be so.

12. The other part of the writ petition was for a direction for implementation of the orders passed in favour of the appellant. If a legal order has been passed by the Prime Minister and is not being implemented it creates a right in the concerned person to move the appropriate forum that the order may be implemented. As already seen the reason recorded in the, impugned judgment is that orders passed by the Prime Minister on applications moved by the appellant did not confer any right in presence of "a duly issued Government notification". We have already seen that the High Court mistook the order passed by Secretary Services to be a Government order while it was not so. We will be examining the powers, which can be exercised by the Government at the proper stage but the conclusion is clear that the High Court fell in error in refusing to set aside the order passed by the Secretary Services.

13. Now we pass on to the question whether the appellant is entitled to the other relief, which he claimed in the writ petition and now in appeal, namely, that direction may be issued that the orders passed by the Prime Minister in his favour may be formally issued. It was argued oil behalf of the respondent that the orders passed by the Prime Minister in favour of the appellant could not be termed as an order of allotment but were only directions for necessary action. However, a perusal of the orders clearly shows that the two orders passed by the Prime Minister on the of November and 22nd of December are clearly orders by which disputed house was allotted to the appellant. However, the examination of the record shows that the appellant is not entitled to the relief under discussion because the Prime Minister subsequently withdrew the orders previously passed by him. The order was passed on an application submitted by respondent No.3 to the Prime Minister whereupon he wrote the following order on 6th of February. 1997. "Take action under rules for handing over possession of the house allotted to S.S.P., Muzaffarabad. If there is any order to the contrary treat it as cancelled."

14. It may be observed that this order is available in the High Court file but is not mentioned in the judgment of the High Court. The High Court has referred to an order passed on 14th of January by the Prime Minister, which is also available in the file in which it was stated that allotment in favour of respondent No.3 shall remain intact. However, another order was subsequently passed by the Prime Minister on an application moved by the appellant on 20th of January that his previous orders passed on 22nd of December and 31st of December, 1996 be implemented acid Mir Abdul Hameed, Secretary Election Commission, will not be ejected from the house occupied by him. This order is available at page 47 of the High Court file. It is obvious that this order superseded the order earlier passed by the Prime Minister on 14th of January, which has been relied upon by the High Court. The position now is that the latest order is of 6th of February (reproduced above). It has not so far been withdrawn and clearly supersedes all other previous orders passed by the Prime Minister. It may be observed that if earlier orders of allotment in favour of the appellant had been formally issued they would have created a right, which could only be taken away after affording him an opportunity of hearing and for some valid reasons. However, the orders passed earlier have been withdrawn by the Prime Minister before they were formally issued. In this situation an enforceable legal right has not been created in favour of the appellant. Therefore, a writ cannot be issued for implementation of the orders, which were withdrawn before the same were acted upon.

15. Now we may deal with another aspect of the matter, namely, whether in presence of a house owned in Muzaffarabad the, appellant was entitled to Government accommodation. This point has been decided against the appellant by the High Court. The prohibition is contained in rule 22 of the Accommodation Rules, which is reproduced below: ‑ "A Government servant who has built or acquired a house at the place of his posting or his wife or one of his dependent children has done so shall not be entitled to Government accommodation: Provided that in special case Government, may relax' the rules and allot accommodation to such a Government Servant for a period not exceeding two years from the date of completion of his house .

16. It was vehemently contended before us by the learned counsel for the appellant, Raja Muhammad Hanif Khan, that the Prime Minister is authorised by sub‑rule (3) of Rule 6‑A of the Accommodation Rules to make allotment of a house even to a Government servant who owns a house in the same city where is asking for official accommodation. Sub‑rule (3) is as follows: ‑‑ "(3) Notwithstanding anything contained in these rules or any other rules for the time being in‑force, the Chief Executive shall have the powers to allot a house to a Government servant at his discretion at any time.

17. While interpreting the power granted in the above extracted sub‑rule we may observe that laws are made and rules are framed for being implemented and not for being violated. This is the concept of law in every State, which is governed by a written constitution. The framing of Accommodation Rules is referable to the Azad Jammu and Kashmir Civil Servants Act. Power to make rules is provided in subsection (1) of section 23, which lays down that: "(1) The Government, or any other person authorised in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act." On a plain reading rules can only be framed for carrying out the purposes of the parent Act.

18. Sub‑rule (3) of rule 6‑A, already reproduced, gives powers to the Chief Executive to override all rules. Such powers, wherever given in any service rules, are only referable to section 22 of the Azad Jammu and Kashmir Civil Servants Act which is as follows: ‑‑ "

22. Saving. ‑‑‑Notwithstanding in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable; Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."

19. It has been held by this Court in Sh. Manzoor Ahmad v. Azad Government and another 1995 PLC (C.S.) 59 that power under section 22 of the Azad Jammu and Kashmir Civil Servants Act has to be exercised to advance the ends of justice and equity and not to give an undue advantage to a civil servant in contravention of the relevant law. Under section 23 the Government is only empowered to make rules for carrying out the purpose of the Azad Jammu and Kashmir Civil Servants Act. Therefore, if a rule confers discretionary power which is exercisable to override the rules it has to be construed that such powers have been conferred for carrying out the purposes of section 22 of the Civil Servants Act, namely, to advance ends of justice and equity. In our view this purpose must be deemed to be incorporated in sub‑rule (3) tinder discussion and all other provisions of this type. Therefore, sub‑rule (3) of rule 6‑A of the Accommodation Rules must be construed accordingly, with the result that the Chief Executive can pass an order only to advance ends of justice and equity. The question as to what is just and equitable cannot be answered by laying down a hard and fast definition. Even otherwise it is not possible to address to this question in vacuum. This depends upon the facts of each case. Even the dictates of justice and equity may be different in different situations and what is just and equitable in one I case may not necessarily be just and equitable in another case. Therefore, each case has to be examined by the Chief Executive on its own merits in light of persuading reasons. We may add that since a writ petition lies to challenge such an order reasons must be such that can stand the scrutiny of judicial review.

20. We may now advert to the question as to what precisely are the powers vested by sub‑rule (3) of rule 6‑A of. Accommodation Rules. The provision to be referred to as sub‑rule (3), has already been reproduced. It opens with the non‑obstante clause, as is usual in such provisions, which means that the power which follows the non‑obstante clause will override all other rules. To interpret such provisions two things are elementary: Firstly, such provisions have to be strictly construed and only that power will be construed to have been vested as is expressly or implicitly mentioned. Secondly, overriding power will be available only to the extent of inconsistency with the other rules and not beyond it. Sub‑rule (3), after the non‑obstante clause, lays down that the Chief Executive "shall have the mowers to allot a house to a Government servant at his discretion at any time." As we read it this provision gives two powers to the Chief Executive. One is the power of allotment while the other is the power of allotment at any time. In various rules forming part of the Accommodation Rules the power of allotment is vested in the Allotment Committee but sub‑rule (3) also confers the power of allotment on the Chief Executive. Under sub‑rule (1) of rule 6‑A allotment of Government residences has to be made on the principle of first come first served which means that the first in time will be the first to get allotment. On the contrary sub‑rule (3) lays down that the Chief Executive may order the allotment of a Government residence "at any time". This provision supersedes the provisions in sub‑rule (1) that one who is the first in time will be the first to get allotment. These two provisions clearly have overriding effect. This is of course subject to the principle already laid down that the order must be based on some reasons, which show that it is equitable and just to exercise this power. There is no other provision of the Accommodation Rules, which is inconsistent with sub -rule (3). It is conspicuous that the word "any", which has superlatively overriding effect has neither been prefixed before the word "house" nor before the expression 'Government servant". We reach the conclusion that sub‑rule (3) cannot override any other provision of the Accommodation Rules. All other provisions stand protected from the provisions of sub‑rule (3). Some of the conclusions that follow are that a Government servant to whom a Government residence is being allotted out of turn by the Chief Executive must be Government servant whose name appears in the waiting list prepared by the Estate Office, and that a house allotted under the special powers of the Chief Executive has to be of the category to which the concerned Government servant is entitled. Rule 22 also remains intact with the result that a Government servant who owns a house at the place of his posting shall not be entitled to Government accommodation except in the cases contemplated by rule 22 itself and as well as by rule 23.

21. Before parting with the case we may point out that it has pained us to learn that the system of allotment of accommodation to Government servants is in a complete mess. We have already noticed that the Allotment Committee is not allowed to function at all and houses are being allotted by the Secretary Service without any authority. We may also point out that the Estate Officer and the Estate Office also appear to be non‑functional. A perusal of the waiting list furnished to us also shows that it has been prepared in total disregard of rule 7, which lays down that the Estate office shall maintain a separate list of' Government servants for each class of accommodation. But the list which has been furnished to us, apart from the fact that it has been prepared by the Services Department and not by the Estate Office, has not been prepared in accordance with the basic pay scales of the officers on the waiting list. We desire that the matter of allotment of Government accommodation must be stream‑lined and that too within a reasonable time. The Allotment Committee and Estate Office should be made functional in accordance with the Accommodation Rules Applications must be filed with the Estate Office which alone should prepare the priority list. All allotments must be made by the Allotment Committee in its regularly convened meetings. The Committee should also review the existing allotments step by step and bring them in conformity with the Accommodation Rules, where necessary. It is our earnest desire that such disputes should not come to the Courts of law in future. Therefore, a copy of this order may be sent to the Chief Secretary by name so that he may take necessary action in the matter under his own supervision. As an upshot of the foregoing conclusion the appeal is partly accepted to the extent that the order of allotment in favour of respondent No.3 is declared to have been passed without lawful authority and of no legal effect. The other part of the relief claimed by the appellant, namely, for issuing a direction for formal orders of allotment in his favour is rejected. Parties will bear their respective costs. M.B.A./178/SC (AJ&K) Appeal partly accepted.