Arshad Ali Nasir VS Secretary National Assembly, etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.3507 of 2020 Arshad Ali Nasir Versus Secretary, National Assembly Secretariat and another Date of Hearing: 23.09.2022 Petitioner by: Hafiz Asif Ali Tamboli, Advocate. Respondents by: Mr. Muhammad Nazir Jawad, Advocate for FGEHA.

Malik Shaukat Nawaz, learned Assistant Attorney-General.

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, the petitioner, Arshad Ali Nasir, impugns letter dated 06.10.2020 from the Federal Government Employees Housing Authority (“FGEHA”) whereby earlier letters dated 19.08.2016 and 29.08.2016 sent by FGEHA to the petitioner were cancelled / withdrawn and his membership in the Federal Government Employees Scheme On Ownership Basis Phase-VII (Sectors F-14/F-15) (“the Housing Scheme”) was downgraded from Category-III to Category-IV. Vide letter dated 29.08.2016, FGEHA sent an offer for the allotment of a Category-III plot in the Housing Scheme on age-wise seniority basis. Furthermore, the petitioner was requested to submit a demand draft / pay order for an amount of Rs.800,000/- as down payment for the cost of land within a period of 21 days.

2.The record shows that vide office order dated 09.02.1982 issued by the National Assembly Secretariat, the petitioner was appointed as Junior Messenger Clerk (Grade-6). On 15.06.2018, the petitioner retired on attaining the age of superannuation. At the time of his retirement, the petitioner was holding the post of Security Assistant

(BS-16).

3.In the year 2015, FGEHA launched the Housing Scheme. On 17.06.2015, the petitioner applied for the registration in the Membership Drive-II for the allotment of a Category-III plot in the Housing Scheme to FGEHA. The petitioner also deposited Rs.25,000/- with FGEHA as membership fee. In the said application, the petitioner represented his pay scale to be BS-16. On payment of the said amount,

the petitioner had obtained registration in Membership Drive-II initiated by FGEHA.

4.Office order dated 09.11.2015 issued by the National Assembly Secretariat shows that the existing pay scale of the petitioner was BS- 15 but he had been placed in BS-16 with effect from 08.12.2014.

5.Vide letter dated 29.08.2016, FGEHA offered to the petitioner a Category-III plot in the Housing Scheme, Phase-VII on age-wise seniority basis “subject to verification of service particulars, documents and fulfillment of criteria of the quota.” The petitioner was requested to deposit Rs.800,000/- as down payment for the cost of land within a period of 21 days. It was clarified that a provisional offer letter for formal allotment will be issued subject to final scrutiny as per the existing policy and shall be contingent on the final decision of the Executive Committee of FGEHA. On 10.09.2016, the petitioner deposited Rs.800,000/- in the account of FGEHA.

6.Vide letter dated 17.09.2019, the National Assembly Secretariat provided information regarding the petitioner”s service particulars to FGEHA, including information that the petitioner was a regular official of BS-16 in the said Secretariat as on 17.06.2015.

7.Vide impugned letter dated 06.10.2020, FGEHA cancelled its earlier letters dated 19.08.2016 and 29.08.2016. The said letter dated 06.10.2020 has been assailed by the petitioner in the instant writ petition. Furthermore, the petitioner seeks a direction to FGEHA to allot him a Category-III plot in the Housing Scheme.

8.Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that the petitioner was a BS-16 employee of the National Assembly Secretariat when he applied for the allotment of a Category-III plot in the Housing Scheme; that the National Assembly Secretariat, vide office order dated 22.07.2020 and letter dated 17.09.2019, had confirmed that the petitioner was a regular official in BS-16 in the said Secretariat; that the petitioner had already deposited Rs.25,000/- as membership fee in Drive-II and Rs.800,000/- as down payment for the cost of land in the account of FGEHA; that the petitioner retired from service on 15.06.2018 and his pension roll data sheet shows that he is receiving pension payable to a BS-16 employee; that strong vested rights were created in the petitioner”s favour when he accepted FGEHA”s offer

dated 29.08.2016 for the allotment of a Category-III plot in the Housing Scheme by depositing an amount of Rs.800,000/- on 10.09.2016; and that FGEHA”s decision to downgrade the petitioner”s entitlement from a Category-III plot to a Category-IV plot is unfair. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

9.On the other hand, learned counsel for FGEHA submitted that the National Assembly Secretariat, vide letter dated 22.07.2020 had confirmed to FGEHA that the petitioner had been “placed” in BS-16 vide office order dated 09.11.2015; that the petitioner was not a regular BS-16 employee in the National Assembly Secretariat as on the date of his retirement; that letter dated 01.01.2015 from the National Assembly Secretariat shows that the petitioner was a Security Assistant (BS-15) but had been granted promotional incentives of BS-16; that the said promotional incentive was granted by way of upgradation / time scale; that there was nothing on the record to show that the petitioner had been regularly promoted to a post in BS-16 in the National Assembly Secretariat; that vide letter dated 06.10.2020, FGEHA informed the petitioner that during the scrutiny of his case, it had been established that he did not fulfill the eligibility criteria for the allotment of a Category-III plot in the Housing Scheme since he has not been holding a BS-16 post on a regular basis; and that since the petitioner was senior most, he is likely to be allotted a Category-IV plot in the Housing Scheme in the near future. Learned counsel for FGEHA prayed for the writ petition to be dismissed.

10.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 7 above and need not be recapitulated.

11.It is not disputed that applicants holding posts in (BS-16) were entitled to the allotment of a Category-III plot in the Housing Scheme. Office order dated 09.11.2015 issued by the National Assembly Secretariat shows that the existing pay scale of the petitioner was BS- 15 but he had been placed in BS-16 with effect from 08.12.2014. FGEHA has filed a copy of the said office order along with its written comments. In response to FGEHA”s letter dated 23.08.2019, the

National Assembly Secretariat, vide letter dated 17.09.2019, informed FGEHA that the petitioner “was a regular official in BS-16 in the National Assembly Secretariat as on 17.06.2015.”

12.There is a disparity in the National Assembly Secretariat”s letters dated 09.11.2015 and 17.09.2019 inasmuch as the earlier letter clearly states that the petitioner had been “placed” in BS-16 whereas the subsequent letter states that the petitioner is a “regular official” in BS-

16.Now “placement” cannot be equated with regular promotion.

13.Learned counsel for FGEHA has brought on record minutes of the 77th Executive Committee of FGEHA held on 23.11.2004 which show that one of the decisions taken in the said meeting was that “consideration for allotment to a government employee is based on substantive appointment.” It was also decided that selection grade was not a promotion to that scale.

14.In the case at hand, the petitioner had applied for membership on 17.06.2015 (i.e. the date on which he deposited the membership fee). On the said date, the petitioner was in BS-15 and not BS-16. I say so because the National Assembly Secretariat”s office order dated 09.11.2015 states that the employees mentioned in the said office order are “placed” in higher scales. The scale in which the petitioner was placed was BS-16. Therefore, the petitioner was in BS-15 when he applied for membership to FGEHA. The mere fact that the said office order was made effective from 08.12.2014 would not change the position that on 17.06.2015, when the petitioner applied for membership, he was not placed in BS-16 as the said office order had not been issued on or before 17.06.2015.

15.National Assembly Secretariat”s letter dated 01.01.2015 is regarding the up-gradation of post of Security Assistants from BPS-15 to BPS-16. The up-gradation of a post on a certain date does not mean that the incumbent holding the post would automatically stand promoted. An Officer holding a post which he is holding has to be promoted against the up-graded post. In the case at hand, although the post of Security Assistant was upgraded to BPS-16 before the petitioner applied for membership but he was “placed” in BS-16 by virtue of the office order dated 09.11.2015 which is after the date on which he applied for membership (i.e. 17.06.2015).

16.In view of the above, I have no reason to interfere in the impugned letter dated 06.10.2020. Consequently, the instant writ petition is dismissed. There shall be no order as to costs.

17.Before parting with this judgment, it may be observed that the Courts in Islamabad are inundated with litigation caused by FGEHA cancelling allotments of plots years after the allotments or provisional allotments are made by taking the ground that the allottees were not eligible for allotment under the applicable eligibility criteria. Such litigation can be averted if FGEHA carries out a scrutiny of applicants prior to the issuance of allotments or provisional allotment letters or including their names in balloting.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN OPEN COURT ON 08.12.2022.

JUDGE

Sultan*