1986 PLP (C (PLC(CS))

Appellant in person. Muhammad Amir Akbar Khan for the State. Date of hearing: 23rd June, 1986. MR. JUSTICE SHAH ABDUR RASHID (CHAIRMAN).

The appellant, Mrs. Razi Begum, is employed in the Federal Government as Research Officer in B-17 and is governed by the Civil Servants Act (LXXI of 1973), and the rules made or deemed to have been made under that Act. Her husband, Dr. M.A. Hafeez is employed as Professor in B-20 in the Quaid-e-Azam University Islamabad. Dr. Hafeez was allowed by the University full rent of the house which he was occupying on the basis of a lease agreement contracted by him with the landlord of the house. The appellant was drawing house rent allowance at the rate of 45 per cent of the pay as admissible to the Federal Government employees. It appears that the authorities of the University advised the appellant to discontinue drawing of the house rent allowance from the Government and also to refund to the Government the house rent already drawn by his wife. He was further directed that if she continues to get the amount of the house rent allowance, he will not be paid the house rent of the premises in which both were living.

2. On the threat of being deprived of the house rent of the appellant's husband she discontinued to draw the allowance but at the same time agitated the matter departmentally that in spite of the spouses occupying the house rented by the appellant's husband, she was entitled to draw the house rent allowance. Having received no redress, she has come up in appeal before us under section 4 of the Service Tribunals Act, 1973.

3. In accordance with the Office Memorandum, dated 20th November, 1674, if both husband and wife are civil servants and are residing together at the same station and residence is allotted to one of them, the other shall not be entitled to draw the house rent allowance. This Office Memo. strictly speaking, is not applicable, inasmuch as, while the appellant is a Federal Government employee, her husband is not occupying that position and, on the other hand, is an employee of a statutory body, namely Quaid-e-Azam University. The learned counsel for respondent, however, contends that since this Office Memorandum has been adopted by the University the restriction contained therein would be applicable. The case of the appellant actually came up for consideration and the Ministry of Finance by its letter of 24th January 1984 made the following observations:? "The undersigned is directed to refer to the Economic Affairs Division's O.M. No. 1 (429)/EA/SOAI/77, dated the 10th January, ?????????? 1984, on the above subject, enclosing therewith application of Mrs. Razi Begum, R.O. and in this regard to further clarify that under the existing rules, when either the husband or wife is allotted residential accommodation by the Government or some autonomous body, the other is not entitled to House Rent Allowance. The reason being that both husband and wife unless legally separated or divorced are supposed to live together in the same house which has since already been provided by the University in the name of her husband."

4. It was further stated by the learned counsel for respondent that the house rent is a compensatory allowance under FR-44 and is allowed for the compensation of actual expenses incurred by the Government employee. It was argued that since the appellant is not spending any amount on hiring of house, she was not entitled to that.

5. As far as the appellants is concerned, she is to be governed strictly in accordance with the rules applicable to the Federal Government employees. Those rules disallow house rent to one of the spouses if the other is in occupation of a Government accommodation. In the present case, while the appellant is a Government servant, her husband is not a Government servant. The appellant is, therefore, entitled to draw the house rent allowance. It is for the employer of her husband to decide whether he would be given full rent of the house in which he is living or not. As far as the appellant is concerned, the house rent allowance cannot be denied to her by the mere fact that the University has adopted similar rules. The adoption of the Government rules by the University means that where the husband as well as the wife are the employees of the University the rule disallowing the house rent allowance to a spouse would be applicable if the other spouse is in occupation of the house the rent of which is being paid by the University. The adoption in fact would be applicable only when both the spouses are employees of the University itself and not otherwise. Neither the University can make a rule affecting the Federal Government employees nor the Federal Government can make any rule affecting the University employees.

6. The net result is that we accept this appeal and direct that the appellant should be allowed house rent allowance as admissible under the rules and refund the amount already deducted on this account. A.A ???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.