• Court says judges entitled to benefits envisaged in Presidential Order 1997
• Asks govt to evolve policy as per law
• Petition says policy to give additional plots has mala fide intentions
ISLAMABAD: The Islamabad High Court (IHC) on Friday declared that the policy of allotment of more than one plot to top bureaucrats and judges of the superior judiciary was illegal.
IHC Justice Mohsin Akhtar Kayani, however, referred the matter for allotment of additional plots to serving and retired judges of the superior judiciary and federal secretaries to the government with the direction to evolve a policy in accordance with law.
The court noted that judges of the superior courts were only entitled to those benefits/rights which had been envisaged in the Presidential Order of 1997 as well as the rights conferred in the 5th Schedule in terms of Article 205 of the Constitution of Pakistan, 1973.
However, “the plain reading of this constitutional document is silent qua any allotment of plot, therefore, Federation of Pakistan has to answer all these issues through legislative instrument in clear non-discriminatory manner so that confidence of citizens of Pakistan is restored upon the entire system of governance” the court order observed.
Justice Kayani was hearing petitions of a non-governmental organisation, Jurist Foundation, which has challenged the government’s decisions of 2006 and 2008 of allotting additional plots to bureaucrats and judges of the superior judiciary, respectively, as well as to two former bureaucrats, Abu Akif and Asma Shahzad. Advocate Riaz Hanif Rahi represented the Jurist Foundation.
According to his petition, a summary for allotment of plots to bureaucrats was approved by the then prime minister on June 27, 2006 which was against constitutional provisions.
The summary, the petition stated, had cited the armed forces system of allotment of additional plots to the senior hierarchy to recognise their meritorious service and grant them additional facilities in accordance with seniority of rank.
According to the court order, the government has abolished the “the Discretionary Quotas in Housing Schemes Act, 2013… to eliminate all kind of discretionary powers, if any available to the Prime Minister of Pakistan or any other authority”, adding that “the very existence of PM Assistance Package, 2006 amended in 2008 stood abated and any further allotment under the said scheme is considered to be illegal.”
The court asked the assistant attorney general to justify the PM Package (facilities for federal secretaries and other civil servants) for BPS-22 officers, which provided the concept of allotment of additional plot. However, the law officers of the federal government could not point out any legal backing for the same.
The court observed that after Mustafa Impex case, every action for future allotment of an additional plot required the sanctioning of the federal government through legislative instrument or legal backing of any statutory instrument.
Subsequently, Justice Kayani declared the PM Package for BPS-22 illegal.
According to the petition, in pursuance of the prime minister’s directive of 2006, initially 36 plots were allotted to grade 22 officers.
The petition went on to state that on Jan 11, 2008, Justice Mohammad Nawaz Abbasi also gave judicial nod to the allotment of a second plot to top bureaucrats and held that the government was competent to make additional allotments.
Subsequently, the Federal Government Employees Housing Authority (FGEHA) also started allotment of additional plots to judges of the Supreme Court while Justice Abbasi was allotted a plot in D-12, the petition pointed out.
It stated that “the policy to allot additional plots is with mala fide intentions and under extraneous consideration to give loss to public exchequer.”
The petition further pointed out that the policy for allotment of additional plots was contradictory to Articles 2-A, 3, 4, 9, 24, 25, 205, 227 of the Constitution that ensured equal opportunity for all.
The FGEHA, on the other hand, contended that the Supreme Court in 2006 had examined this matter and had defined eligibility criteria for plot allotments and the Prime Minister’s Secretariat had already acted upon the apex court’s directions.
In a written reply submitted before the IHC, the FGEHA stated that the authority allotted plot to Justice Nawaz Abbasi “since he was a fit candidate, had fulfilled all eligibility criteria established by the federal government and had paid the fixed consideration for the same”.
It may be mentioned here that the FGEHA, formerly known as Federal Government Employees Housing Foundation, was established to provide shelter to the employees of the federal government only. However, on Nov 8, 1999, Justice Nawaz Abbasi, the judge of the Lahore High Court (LHC) Rawalpindi Bench hearing a case related to the acquisition of land for G-13, had prescribed the criteria for allotment of plots to judges of the superior courts.
The bench had given directions to include employees of autonomous and semi-autonomous organisations, the Election Commission of Pakistan, Supreme Court, Federal Shariat Court, LHC Rawalpindi Bench, the National Assembly, senior members of the armed forces, journalists, doctors, engineers and lawyers.
Published in Dawn, August 28th, 2021