2011 PLP (C (PLC(CS))

MUHAMMAD HASHIM KHAN KAKAR, J.

The petitioner has challenged validity of the order dated 10th February, 2010 passed by Chairman House Allotment Committee/Secretary, Services and General Administration Department, Government of Balochistan, whereby approval has been granted in favour of Abdul Sattar Khajjak (respondent No.3) for retention of House No.C-3 (new), Wahdat Colony, Quetta, for a period of one year w.e.f. 8th February, 2011 to 7th February, 2012.

2. The contention of the petitioner is that the house in question was allotted in her favour vide notification bearing No.CEO (S&GAD)C-3 (New)W.C/2010 dated 25th May, 2010 issued by respondents Nos.1 and

2. The petitioner claimed that initially through order dated 14th October, 2010, the respondent No.3 was allowed to retain the disputed house for a period of six months after his retirement w.e.f. 7th August, 2010 to 7th February, 2011, but after expiry of the said period, the same was not handed over to her, rather illegally through impugned order dated 10th February, 2011, the retention period was further extended in favour of respondent No.3 for a period of one year in violation of Rules and Regulations of Services and General Administration Department.

3. Mr. Shah Muhammad Jatoi, learned counsel for the petitioner, stressed that under the provisions of Residential Accommodation at Quetta (Procedure of Allotment) Rules, 2009, (hereinafter referred to the "Rules of 2009"), a civil servant after retirement cannot retain a government residence for more than six months. He further argued that under the Rules of 2009, the Chief Minister has no authority to extend the retention period beyond the stipulated period, thus, he requested for annulment of the order impugned herein.

4. On the other hand, learned Assistant Advocate-General, appearing on behalf of respondents Nos.l and 2, stoutly defended the impugned order with the contention that the same has been passed with prior approval of competent authority i.e. Chief Minister, who was pleased to extend the retention period for a further period of one year

5. The respondent No.3, who appeared in person, contended that under clause 11(4) of the Rules of 2009, he is entitled to retain the possession of disputed house till availability of alternate accommodation, as his son is also government employee as Junior Scale Stenographer B-12.

6. We have anxiously considered the contentions, put forth by the parties, in the light of relevant provisions of law. At the very outset, when we asked the learned Assistant Advocate-General as to whether, under the provisions of the Rules, 2009, the Chief Minister is empowered to pass any order contrary to it, he could not answer satisfactorily. We have minutely gone through the contents of the Rules of 2009 and the relevant law/policies, introduced by the Provincial Government, but failed to find out a single provision which empowers the Chief Minister/Authority to order retention of the government accommodation beyond the stipulated period.

7. We are mindful of the fact that section 21 of the General Clauses Act, 1956 and aiding provisions of law i.e. section 39(1) of the Government of Balochistan Rules of Business 1976 read with its schedule VIII, empowers the administrative authority to amend, make and relax the rules, as also to deal with the case of any civil servant as may appear to him just and equitable, but these provisions of law have no relevancy with the matter, pertaining to retention of a government accommodation beyond the stipulated period, in presence of a specific statutory provision of law.

8. In the instant case, a deviation has been made from the rules and the order impugned herein was made by the Chief Minister, which is contrary to the law and it is a classical example of mis-exercising of powers on the part of respondent No.l. In this regard, we are fortified by the judgment reported in 1995 SCMR 650(E), the relevant portion whereof is reproduced herein below:

"No doubt the competent authority has the discretion but it was not unfettered. While exercising discretion, the authority should not act arbitrary, unreasonably and in complete disregard of the rules and regulations. The discretion to be exercised has to be judged and considered in the background of the facts and circumstances of each case. In the present case there is a strong background of ignoring or disapproving the appellant with certain purposes." In view of the dictum laid down by the Hon'ble apex court, we have no hesitation to hold that it was never a case, where deviation could have been made from the statutory rules. The civil servants are not supposed to comply with the illegal orders of the administrative authority.

9. Adverting now to the contention of respondent No.3 regarding section 11(4) of the Rules, 2009, the same is also devoid of any force, as the said rules speak as under:-- "Allotment of accommodation may be transferred to the father/mother/real brother/real sister/real son or wife/husband of the allottee, if he/she is eligible for the same or for a higher type of accommodation at the time of the event or becomes eligible within two months of the event and beneficiary had been ordinarily residing with the allottee. In case he/she is entitled to a lower class accommodation, he/she shall be allotted the first available quarter in that class. Till such time an alternative accommodation is made available, he/she may retain the accommodation in his/her occupation on payment of normal rent." Admittedly, case of the respondent's son, namely, Taimoor Khan Khajjak does not fall within the domain of section 11(4), as the disputed house is type (C), which is designated for the officers of Grade 17 and 18, while son of the petitioner is an employee of grade 12, who is entitled to retain a house type (E) as provided under section 4 of the Rules, which states as under:-- S. No. Type of accommodation Entitlement 1. "A" Type Residence Grade 20-22 and Additional Secretaries 2. "B" Type Residences Grade 19-Dy. Secretaries 3. "C" Type Houses/Flats Grade 17-18 4. "D" Type Quarters Grade 16 Officers 5. "E" Type Quarters Grade 11-15 Officials 6. "F" Type Quarters Grade 8-10 Officials 7. "G" Type Quarters Grade 5-7 Officials 8. "H" Type Quarters Grade 1-4 Officials From bare perusal of above mentioned table, it can be concluded, that the respondent No.3 is not entitled to retain the disputed house till availability of alternate accommodation as claimed by him. For the reasons stated above, we are of the considered view that the order dated 10th February, 2011, impugned herein, being passed in violation of the Rules of 2009, is illegal, void and of no legal effect, thus, the same is hereby set aside. The respondents are directed to hand over the vacant possession of the House No.C-3 (new), Wahdat Colony, Quetta to the petitioner within a period of one month positively. The constitutional petition is, accordingly, disposed of with no order as to cost. M.H./59/Q Order accordingly.