IN THE SUPREME COURT OF PAKISTAN 
  (Appellate Jurisdiction) 
 
 
 
 
 
PRESENT: 
 
 
 
 
Mr. Justice Iftikhar Muhammad Chaudhry, HCJ  
 
 
 
Mr. Justice Khilji Arif Hussain  
 
 
 
Mr. Justice Tariq Parvez 
 
 
Civil Petition No.1498 of 2011 
Against order dated 04.07.2011 of Islamabad 
High Court, Islamabad, passed in C.M.No.140 
of 2011 in W.P.No.2248 of 2009. 
 
 
Muhammad Afsar  
 
 
 
 
Petitioner(s) 
 
VERSUS 
 
Malik Muhammad Farooq  
 
 
 
Respondent(s) 
 
 
For the Petitioner(s)  
: 
In person.  
 
For Respondent No.1 
: 
Syed Arshad Hussain Shah, ASC 
 
For Respondents No.2-3 
: 
Mr. Dil Muhammad Alizai, DAG 
 
 
 
 
 
Mr. M. S. Khattak, AOR 
 
 
 
 
 
Mr. Kamran Lashari, Secretary,  
 
 
 
 
 
M/o Housing & Works 
 
 
 
 
 
Mr. Asim Ayub, Estate Officer, 
 
 
 
 
 
Qaisar Mehmood, JEO 
 
 
Date of Hearing 
 
: 
19.10.2011 
 
ORDER 
 
 
 
 
Khilji Arif Hussain, J-. Through this petition, filed under 
Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 
1973, the petitioner seeks leave to appeal against order dated 04.07.2011, 
passed by Islamabad High Court, Islamabad, vide which Civil 
Miscellaneous Application (C.M.No.140 of 2011 in Writ Petition No.2248 
of 2009), filed by respondent No.1, under Section 12(2) of Civil 
Procedure Code, 1908, was allowed and the judgment dated 16.03.2011 
in Writ Petition Nos. 2248 of 2009 was recalled. 
 
2. 
 
Brief facts to decide the listed petition are that the petitioner 
alleged in his petition that he was allotted the House No. 609-D, Street 
No.24, Sector G-6/4, Islamabad (hereinafter referred to as “the house in 
 
question) vide allotment order dated 23.01.2008. The petitioner first filed 
suit in Civil Court, Islamabad, with the prayer that the house in question 
may not be allotted to any one else and in consequence thereof an order 
was passed in favour of the petitioner to the effect the house in question 
may not be allotted to any one else. The petitioner in his petition alleged 
that some unauthorized persons are living in the house in question, 
without lawful allotment in their favour, which is in violation of the law 
and as such sought directions to the official respondents to hand over the 
vacant possession of the house in question after dispossessing the illegal 
occupants. The learned High Court, vide judgment dated 16.03.2010 
after calling parawise comments directed the respondents to arrange 
vacant possession of the house in question in favour of the petitioner 
within 10 days from the date of order, with the condition that the 
petitioner will place on record proof that he has handed over house 
bearing Quarter No.450-B, G-6/1-1 to the respondents.  
 
3. 
 
The petitioner managed allotment order of the said house in 
favour of his brother and sought possession of the house in question.  
4. 
 
The respondent No.1 on having information about the order 
passed by the High Court filed an application under Section 12(2)CPC 
alleging that his father was allotted the said house and on his retirement 
from Government service on 14.10.2007 the respondent No.1 who has all 
along been living with his father in the house in question, being eligible, 
applied for the allotment under Rule 15(2) of the Accommodation 
Allocation Rules, 2002 well before the retirement of his father, which 
entitles the eligible spouses and children of the Government servants to 
the allotment of government accommodation which had been allotted to 
and was in occupation of a retired government servant at the time of his 
retirement. The Ministry of Housing & Works, Islamabad, issued allotment 
order dated 12.02.2010, in favour of the respondent No.1 allotting the 
 
house in question, which was earlier allotted to the petitioner in 
supersession of all previous orders.  
5. 
 
The High Court after hearing the parties accepted the 
application under section 12(2), CPC and restored Writ Petition No.2248 
of 2009 to its original number directing the petitioner to amend the 
petition by joining the respondent No.1 as respondent No.3. and fixed the 
same alongwith C.P. No. 2622 of 2010. Hence, this petition for grant of 
leave to appeal.  
 
6. 
 
We have called the Secretary, Housing & Works as well as 
the Estate Officer to apprise the Court not only about the proceedings 
pending in various Courts, but also to explain the criteria on the basis of 
which they have allotted government accommodations, in their 
possession, to eligible government employees. We have also called a 
report from the learned District Judge, Islamabad, qua the cases pending, 
pertaining to the Estate Office, in various Courts.  
 
7. 
 
As regards the cases pending in various Courts against the 
Estate Office, we have noted that delay in conclusion of the same mostly 
caused owing to non serious attitude of the officials of Estate Office and 
accordingly we directed that a mechanism should be adopted by the Estate 
Office to pursue the matters before the Courts of law and some 
responsible officers/officials should be deputed to check the progress 
fortnightly in order to avoid any mala fide on the part of the 
officers/officials of the Estate Office to delay the matters so as to favour 
the persons of their choice.  
 
8. 
 
We have surprised to note that all the allotments till date 
made by the Estate office are not on the basis of first come first get, as per 
the General Waiting List maintained by them under Rule 6 of the 
Accommodation Allocation Rules, 2002 but on the basis of some 
 
extraneous consideration orders were passed by the high-ups without 
assigning any reason in favour of the employees of their own choice.  
 
9. 
 
The Courts are duty bound to uphold the constitutional 
mandate and to keep up the salutary principles of rule of law. In order to 
uphold such principles, it has been stated time and again by the superior 
Courts that all acts should be done by the public functionaries in a 
transparent manner after applying judicious mind and after fulfilling all 
requirements. The public functionaries are supposed to adhere to the 
principle of transparency in the performance of their duties and are not 
bound to carry out/implement any order which is not in accordance with 
law and they are only obliged to carry out the lawful orders of their 
superiors and if they are being pressurized to implement an illegal order, 
they should put on record their dissenting notes. But unfortunately, the 
officers in the Estate Office not only implemented the illegal orders but 
apparently acted for their own personal benefits/gain.     
 
10. 
 
As regards the petitioner he managed allotment in his 
favour, under the order of Federal Minister for Housing & Works who 
without assigning any reason by a non speaking order directed for the 
allotment of the house in question in favour of the petitioner.  
 
11. 
 
Rule 29A of the Accommodation Allocation Rules, 2002 
empowers the Federal Government to relax any rule governing allotment 
of accommodation to eligible Federal Government Servants in public 
interest for deserving and hardship cases and on compassionate grounds 
for reasons to be recorded in writing for such relaxation. 
 
12. 
 
From a bare reading of Rule 29A of the Accommodation 
Allocation Rules, 2002, it appears that while exercising the powers under 
said rule, the Federal Government has to record justifiable reasons in 
writing for relaxation of the rules. Rule 6 of Rules 2002 mandate that the 
applications for the allotment of government accommodations when 
 
received from the applicants shall be acknowledged by the Estate Office 
by issuing Registration Cards and the Estate Office shall maintain a 
General Waiting List of the employees, who have applied for the allotment 
of government accommodations on the prescribed form and the 
employees who applied first are entitled for the allotment of government 
accommodations first as and when the same are made available.  
 
13. 
 
The right accrued to an employee in General Waiting List 
maintained by the Estate Office under Rule 6 of the Accommodation 
Allocation Rules, 2002 cannot be taken away by the Federal Government 
on its own sweet will just because they have been empowered to relax the 
rules under Rule 29A of the Accommodation Allocation Rules, 2002. The 
denial of right of accommodation to employees under Rule 6 of the 
Accommodation Allocation Rules, 2002, is denial of fundamental right of 
life, which includes to have shelter/house as guaranteed under Article 9 
of the Constitution. On reading rule 29A of the Accommodation 
Allocation Rules, 2002 alongwith Rule 6 of the Accommodation Allocation 
Rules, 2002, it appears that only in very exceptional circumstances the 
relaxation can be granted to accommodate a deserving government 
employee in public interest but for that too a justifiable reason has to be 
recorded by the concerned authority which is lacking in the present case. 
However, we would not like to dilate upon this matter, in detail, as the 
petition filed by the petitioner is still sub-judice before the Court of 
competent jurisdiction.  
 
14. 
 
As regards respondent No.1, he sought allotment under Rule 
15(2) of the Accommodation Allocation Rules, 2002, being in possession 
of the house in question, which was previously allotted to his father, who 
stood retired on 14.10.2007 from government service. Despite repeated 
queries made by us, the respondent No.1 has been failed to point out any 
rule under which an allotment order can be issued with retrospective 
effect and the officials/officers appeared on behalf of the Estate Office 
 
have frankly conceded that there is no such rule under which an 
allotment order can be given a retrospective effect.  
 
15. 
 
We have called for a report from the Estate Office to know 
that how many applications are pending on General Waiting List under 
Rule 6 of the Accommodation Allocation Rules, 2002. From a perusal 
thereof, it appears that thousands of employees are waiting for allotment 
of government accommodations for the last many many years and some of 
the applications pertain to the years 1977-78, and the official respondents 
have failed to give any reason as to why they have not been allotted 
government accommodations as and when made available. The official 
respondents have admitted that till date no allotment has been made on 
merits, on the basis of General Waiting List maintained by them under 
Rule 6 of the Accommodation Allocation Rules, 2002. 
 
 
 
In the circumstance, while dismissing the instant petition, 
we direct the authorities concerned as under:- 
i. 
that in future all the allotments will be made 
strictly on merits on the basis of General 
Waiting List; and 
ii. 
Relaxation of rules under Rule 29A of the 
Accommodation Allocation Rules, 2002 will 
not be often exercised, except in the cases of 
hardship and that too by recording justifiable 
reasons for the same, after hearing the likely 
affected employees in the General Waiting List.       
 
 
Chief Justice 
 
 
 
Judge 
 
 
 
Judge 
ISLAMABAD 
19.10.2011 
 
 
Approved for reporting