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KHUSHDIL KHAN MALIK versus SECRETARY MINISTRY OF DEFENCE RAWALPINDI CANTT

Directorate - Directorate of Education, Garrison - Option to Plot in Defense Housing Authority (\\\ DHA \\\) - Natural Justice, - The Principle of Scope Principles [Per Dost Muhammad Khan, J; Theory of Majority] Under the administrative control and management of the Office of Education, Garrison, the Ministry of Defense / Defense Directorate Directorate for all intents and purposes The Directorate of Education Garrison was affiliated with the Garrison Education Corporation and was under the effective administration. It controls and manages - The employee is eligible to become a member of the Defense Housing Authority (\\\ DHA ") and therefore is entitled to a plot allotment employee Unilateral cancellation of the plot in the employee's name, without any notice. An unreasonable order was issued to cancel the allotment of plot to the employee, condemning his unreasonable violation of the principles of natural justice. [Pir Omar Ata Bandial, J; Minority View] ) Directorate Direct ian was not paid any of the defense estimates to civil servants, so he made the allotment Were not eligible for the notification by the Defense Housing Authority for.

PLD 2017 Supreme Court 173

Present: Anwar Zaheed Jamali,

Dost Muhammad Khan and Umar Ata Bandial, JJ

KHUSHDIL KHAN MALIK—Appellant

versus

SECRETARY, MINISTRY OF DEFENCE RAWALPINDI CANTT and others—Respondents

Civil Appeal No.654 of 2007, heard on 29th May, 2015.

(On appeal from the judgment dated 25-7-2006 passed by the High Court of Balochistan, Quetta in C.P. No.788 of 2005).

Per Dost Muhammad Khan, J; Anwar Zaheer Jamali, Cjl agreeing; Umar Ata Bandial, J dissenting 

(a) Allotment

—Employee of Directorate of Education, Garrison—Entitlement to plot in Defence Housing Authority ("DHA")—Natural justice, principles of—Scope—[Per Dost Muhammad Khan, J; Majority view] Directorate of Education, Garrison was under the administrative control and management of the Ministry of Oefence/Defence Directorate—Employee of Directorate of Education, Garrison for all intents and purposes, belonged to Education Corp of the Garrison and was under the effective administrative control and management thereof—Employee was competent to be a member of the Defence Housing Authority ("DHA”) and hence entitled to allotment of plot therein—Unilateral cancellation of plot in employee's name without any show cause notice, amounted to condemning him unheard against the principles of natural justice—Impugned order cancelling allotment of plot to employee was set aside—[Per Umar Ata Bandial, J; Minority view] Civilian employee of the Federal Government Educational Institutions (Cantonments/Garrisons) Directorate ("the Directorate") was not paid out of Defence Estimates therefore he did not qualify for eligibility notified by Defence Housing Authority for the allotment of its plots,

*Per Dost Muhammad Khan, J; Majority view;

Wholesome budget was allocated to the Ministry of Defence and was placed at the disposal of Military Accountant General (MAG) for further disbursement on defence expenditures and other emoluments of the Armed Forces of Pakistan and those civilian officials, who were serving in the departments attached to the Defence Services. Employee in question who was serving in Directorate of Education, Garrison, was paid from the Defence Estimates through internal arrangements of the Defence Services and in such way, he had no nexus or connection with the Ministry of Education. Directorate of Education, Garrison was under, the administrative control and management of the Ministry of Defence/Defence Directorate, and not under the control of Education Ministry or Directorate of Education of Federal Government. [p.178] A&B

Employee for all intents and purposes, belonged to Education Corp of the Garrison and was under the effective administrative control and management thereof, otherwise the order of his promotion, would

have been issued by the Ministry of Education, Government of Pakistan and not by a Colonel In charge in active service of the Defence Services, [p. 178] C

Employee was competent to be a member of the Defence Housing Authority ("DHA") and hence entitled to allotment of plot therein, [p. 178] D

Employee was successful in balloting process and got a plot; he deposited the seed money/installment, therefore, a decisive step was taken in the matter and vested right had already accrued to the employee, hence unilateral cancellation of plot from his name without any show cause notice, clearly amounted to condemning him unheard against the principles of natural justice, [p. 179] E

Impugned order of the Ministry of Defence cancelling allotment of plot from the name of the employee was held to be in disregard of law, principles of justice and without lawful authority and the same was set at naught. Supreme Court directed that the same plot shall be restored/allotted to the employee or if that was not possible then some other plot of the same market value and of the same size be allotted to the employee, subject to payment of the dues. [p. 179] G

Per Umar Ata Bandial, J; [Minority view]

Civilian employee of the Federal Government Educational Institutions (Cantonments/Garrisons) Directorate ("the Directorate") was not paid out of Defence Estimates therefore he did not qualify for eligibility notified by Defence Housing Authority for the allotment of its plots. However in derogation of such non-eligibility, the Defence Division had issued a letter extending the eligibility criteria to civilian employees of the Directorate. His Lordship observed that whether any relevant and cogent ground existed to justify the Defence Division to confer on its civilian employees a proprietary privilege reserved for employees paid out of Defence Estimates was a matter that deserved judicial scrutiny upon the initiative of the Chief Justice of the Supreme Court, [pp. 186, 187] K, L & M

Per Dost Muhammad Khan, J:

(b) Natural justice, principles of—

—Scope—Principles of natural justice were to be construed as part and parcel of every statute even if not contained in the statute and it shall apply to all proceedings, whether judicial or administrative in nature, [p. 179] F

Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 ref.

Per Umar Ata Bandial J; dissenting with Dost Muhammad Khan, J [Minority view

(c) Rules of Business, 1973 —

—-Sclied, II, Defence Division, Item No. 2 & Sched. HI, S. No. 19— Civilian employees of Federal Government Educational Institutions (Cantonments/Garrisons) Directorate ("the Directorate")—Civilian employees not paid from Defence Estimates—Contention of civilian employee of Directorate was that he was paid out of the Defence Budget/Estimates—Validity—Such contention was not proved from the record, as it was at best a conjectural inference drawn from the method of payment rather than the demonstration of the source and account of the funds disbursed—Rules of Business and Current Expenditure Statement in the Federal Budget showed that employees of Directorate were not paid from the Defence Estimates, however there was lack of an express legal instrument to such effect issued by the competent authority defining rights and liabilities of the employees of the Directorate be it through rules, notification, guidelines or instructions—His Lordship observed that an appropriate legal instrument should be issued by the competent authority in the Federal Government for setting out the essential details regarding rights, privileges and terms and conditions of service of the civilian employees working in the Directorate and in the Defence Division and other attached departments thereto. [Majority view], [p. 186] H&J

(d) Interpretation of executive instructions—

—Scope—Executive instructions that were expressed in precise terms and were capable of being applied with particularity to a great variety of cases were treated to have binding effect particularly where they had been applied strictly and not been departed from. [p. 186] I

Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 ref.

Appellant in person.

Waqar Rana, Addl. A.G. Pakistan for Respondents Nos. 1 and 2.

Arshad Ali Chaudhary, ASC/AOR for Respondent No.3.

Date of hearing: 29th May, 2015.

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