2000 PLP (C (PLC(CS))

MUHAMMAD RAZA KHAN (MEMBER).‑‑The appellant is serving as Private Secretary in the Prime Minister's Implementation and Inspection Commission, Islamabad. He applied for the self‑hiring of his house situated in village Jhangi Syedan, Islamabad. This request of the appellant was rejected by the respondent‑Department vide letter, dated 13‑2‑1997. He filed a representation to the Secretary, Works Division, i.e. respondent No. 1, on 3‑3‑1997 and the same has been rejected on 22‑4‑1997. Both, the original order, dated 13‑2‑1997 and the appellate order, dated 22‑4‑1997, have been challenged in a service appeal filed on 10‑5‑1997 on the grounds that, firstly, the house proposed to be occupied by the appellant on self‑hiring basis was situated within Islamabad and that several other houses have also been hired by the Estate Office in the same locality and the refusal to extend the same benefit to the appellant was an act of discrimination. Secondly, that the appellant was entitled, under the rules, to get the house on self‑hiring basis and the refusal on the part of the respondents amounted to violation of the statutory rules as well as a vested right of a civil servant.

2. The respondents contested the appeal. Written objections have been filed. We, have listened to the arguments.

3. Rule 10(l) of the Pakistan Allocation Rules, 1993, .provide as follows:‑‑ "

10. Self‑hiring‑‑(1). If a F.G.S. who is otherwise eligible for allotment of Government accommodation under these rules, from the Estate Office's pool of residential houses maintained at the station of his posting owns a house or his spouse or one or. More members of his family own a house at such station, he may be allowed to live in such house as if that house was on the State Office Pool and had been allotted to him as his official residence." The analysis of the‑said rule will show that there are certain preconditions for the permission to occupy a house on self‑hiring basis which are:‑‑ (a) The applicant must be a Federal Government Servant; (b) he must be eligible for allotment of Government accommodation from the Estate Office Pool; and (c) he or ‑a member of his family should own a house at the station of posting of such an employee.

3. All these three prerequisites are complete so far as the appellant is concerned. He is admittedly a Federal Government Servant, posted at Islamabad and he owns a house within Islamabad and he was otherwise eligible for allotment of accommodation from the Estate Office Pool, therefore, in accordance with the rules the appellant was entitled for self- hiring of the said house.

5. During the arguments the learned Standing Counsel submitted that in accordance with the advice of the Capital Development Authority, instructions were issued and the self,‑hiring of houses, beyond the specific sectors and the model villages, had been stopped. For this purpose he relied on two documents, written by the Capital Development Authority to the Works Division, dated 13‑2‑1993 and 13‑7‑1993 and a decision was taken by tire Works Division as per the Communication, dated 8‑4‑1996. For the facility of analysis and reference the said letters are reproduced hereinbelow:‑‑ (a) Letter, dated 13‑2‑1993. . "CAPITALDEVELOPMENT AUTHORITY (REGIONAL PLANNING DIRECTORATE) No.CDA/PLW‑RI‑1(44)93/l89‑90 Islamabad, February 13, 1993. From: Muhammad Qasim, Town Planner‑I, Regional Planning Dte., CDA, Islamabad. To: The Estate Officer, .Ministry of Housing and Works, Works Division, Government of Pakistan, Islamabad. Subject: HIRING OF PRIVATE HOUSES Sir; I am directed to inform that in order to discourage the unauthorized and unplanned development of houses within the Zones 4 and 5 of ICT, CDA request the Works Division, Government of Pakistan to stop hiring of private houses in these zones other than the model villages approved by the CDA. (2) Your cooperation in this regard shall be highly appreciated by the Authority. " (b) Extracts from the letter, dated 13‑7‑1993: "Subject: HIRING OF PRIVATE HOUSES LOCATED WITHIN ZONES 4 AND 5 OF I.C.T. This has a reference to CDA's Letter No.CDA/PLW‑RP‑1(44)/93, dated 13‑2‑1993 and the letter of Works Division., Government of Pakistan No.F.4‑1‑1987‑EV., dated 27‑4‑1993. (2) In order to check haphazard and unauthorized construction of residential houses in the park and rural periphery of Islamabad in Zone 4 and Zone 5 of the ICT, it has been decided that the Authority shall not hire any house for its employees other than the planned Model Town/Model Villages by the CDA. It was also decided by the Board‑ of CDA that a reference shall be made to the Works Division, Government of Pakistan to adopt the same policy, so that an unified modality could be adopted to discharge the construction of unauthorized residential houses in the Park and Rural Periphery of the Islamabad. (3) No doubt, CDA is making all efforts to discharge and check the unauthorized construction of residential houses in these areas according to various Laws/Regulations in vogue, nevertheless it is felt that the above proposal could be one of the deterrent to lessen the spree towards construction of unauthorized houses in these ‑Zones. Your Ministry is, therefore, requested to consider the, proposal. "' (c) Extract from the order, dated 8‑4‑1996: "Islamabad the 8th April,.1996. Subject: HIRING OF RESIDENTIAL ACCOMMODATION FOR THE ENTITLED FEDERAL GOVERNMENT SERVANTS IN ISLAMABAD I am directed to say that it has been decided with the approval of the competent Authority to hire residential accommodation for the entitled Federal Government Servants only in the specified Sectors of Islamabad and Model Villages, including Humak, Rawal Town, Chak Shahzad etc., in accordance with the covered areas/specifications,, rental ceilings prescribed for Islamabad. (2) This supersedes previous instructions issued on the subject vide this Division's, letter of even number, dated 14th January, 1987."

6. From the above letters the following salient features can be deduced:‑‑ (a) That the Capital Development Authority had intended that unauthorized and unplanned development in Zones 4 and 5 be discouraged. (b) As a matter of policy the Capital Development Authority has decided not to hire any house for its employees, in these sectors except the Model Towns and Model Villages and consequently the Capital Development Authority has requested the Works Division to adopt a similar policy. (c) The Works Division finally took a decision, after three years, that the self‑hiring shall be allowed only in the specified Sectors of Islamabad and the Model Villages like Humak, Rawal Town, Chak Shahzad etc.

7. At the time of hearing the representative of respondent‑Department and the learned Standing Counsel also stated that the house belonging to the appellant was situated in Zone‑5 and, therefore, it was violative of the said policy to hire his house whereas the appellant has alleged that his house did not fall in Zone‑5 rather he was a resident of Zone‑1, In proof of this contention he submitted a copy of "Master Plan of Islamabad," extracts from the Capital Development Authority Islamabad Capital Territory (Zoning) Regulation, 1992, and the extracts from the brochure of Sector G‑13 of the Federal Government Employees Housing Foundation. From these documents it is clearly established that the house belonging to the appellant situated in Village Jhangi Syedan and tails within Zone‑1 which was a sectoral area of the Capital Development Authority and thus, the statement that the said house situated in Zone‑5 was belied.

8. In the objections it has been stated that the houses were allowed to be occupied on self‑hiring basis in Village Jhangi Syedan prior to 8‑4‑1996 when a decision was made not to hire the houses in such localities as per the request of Capital Development Authority and thus, the policy was modified and no house has been hired in such localities other than Model Towns and Model Villages after April, 1996. This practice and the policy decision seem to be not only violative of the statutory rules but also of the desire of the Capital Development Authority itself. As quoted hereinbefore, the Capital Development Authority had simply requested for initiating measures to check the unauthorized construction of houses in Zones 4 and 5 and, therefore, the vital. Development Authority had not asked for the imposition of ban on the hiring of houses in other zones. Since the locality of the appellant was not situated in Zone 4 or Zone 5, therefore, it was not covered by the request of the Capital Development Authority dated 13‑2‑1993 or 13‑7‑1993.

9. Even if, for the sake of arguments, it is presumed that the locality of the appellant was situated within Zone 4 or Zone 5, the decision dated 8‑4‑1996 by the Works Division was not in accordance with the spirit of Pakistan Allocation Rules. The Capital Development Authority is a huge organization with all the resources at its command. Illegal and unauthorized construction of houses can be checked by the Enforcement Staff and the Capital Development Authority has candidly admitted it in the letter dated 13‑7‑1996 (reproduced hereinabove). If the Capital Development Authority has failed to perform its functions properly' it cannot justify the violation of the statutory rules only to cover tip its own failure. The Pakistan Allocation I Rules, 1993, have been framed by the Federal Government and approved by I the President under section 25 of the Civil Servants Act, 1973. Thus the issue of hiring of accommodation, self‑hiring of personal houses and allied matters have become the vested rights of the civil servants and such matters are now considered to be included in the terms and conditions of the service of the civil servants. Such vested rights and guaranteed terms and conditions of service cannot be denied or refused just on the request of a particular department or on an instruction from another one. Citizens cannot be divested of their rights, guaranteed by the Statutes or the Statutory Rules, merely by instructions. If there was any justification, the Works Division could certainly propose the amendment in the Pakistan Allocation Rules but the instructions and policy decision can never override the statutory rules vesting the civil servants with valuable rights.

10. It was also mentioned in the impugned appellate order dated 22‑4‑1996 that the hiring in rural areas and villages has been stopped by the Works Division vide their letter dated 8‑4‑1996. Thus, an effort was made to say that the locality in which the house of the appellant was situated comprised of the rural area and hence it was not situated within "the station of the posting" of the appellant and as such the refusal of hiring could be justified. However, this contention was belied by the Capital Developing Authority (Zoning) Regulation, 1992, and the master plan of‑ the CDA whereby the locality of Jhangi Svedan was stated to be situated in Sector H‑14 of Zone 1 of Islamabad and Zone 1 has been stated to be sectoral area of Islamabad. Hence the entire sectoral areas, comprising of Zone 1, were the urban area of Islamabad and not the rural one. Zones 4 and 5 may be considered to be rural areas but Zone 1 is certainly urban area of Islamabad and, therefore, the appellate order suffers from a factual defect.

11. In view of the above discussion we hold that the appellant satisfies the requirements under rule 10 of the Pakistan Allocation Rules, 1993, and any instruction issued in violation of such rules shall be illegal and void and, therefore, we accept this appeal, set aside the impugned original and the appellate orders dated 13‑2‑1997 and 22‑4‑1997 and direct that the appellant may be allowed the self‑hiring of his house with effect from 1‑12‑1996 i.e. the date when the request was initially made.

12. No order as to costs. H.B.T./210/St/F Appeal accepted.