Pramod Kumar vs Union Of India (Uoi) And Ors.
1999 Latest Caselaw 556 Del

JUDGMENT

C.M. Nayar, J.

1. This petition has been filed for issuance of a writ of certiorari for quashing the impugned communication dated 21st April, 1995 (Annexure-P6) as well as for a writ of mandamus commanding the respondents to make ad hoc allotment of Type-11 quarter in Sector-VII, R.K. Puram, New Delhi in the name of the petitioner. The petitioner is stated to be working in the High Court of Delhi w.e.f. 2nd January, 1995 in the pay scale of Rs. 1350-2200. It is further contended that the petitioner was 'offered appointment on 17th December, 1994 but as the Court was closed for winter vacations the petitioner was called to join duty w.e.f. 2nd January, 1995. Prior to the appointment of the petitioner, his father Shri Gopi Chand was in Government service and an allottee of Type-II Government accommodation bearing House No. 541 / VII, R.K. Puram, New Delhi. The petitioner was residing in the said premises alongwith his father for more than six months at the time of retirement of his father who retired on 28th February, 1994. The petitioner did not draw any House Rent Allowance after joining service as he continued to live in the premises with his father even after his retirement. In paragraph 4 of the petition reference is made to the Office Memorandum No. 12029(1)74/POL. II dated 5th July, 1976 on the subject of ad hoc allotment in the name of near relations of the Government servants who retire from service which lays down that a request for ad hoc allotment from an eligible dependent could be considered in case the dependent gets an employment in an eligible office even after the retirement of the officer provided the appointment is secured within a period of ten months after the retirement of the officer. The aforesaid Memorandum is filed as Annexure-P3 to the writ petition and reads as follows :

"Copy of O.M. No. 12029(1)/74/POL. II dated 5.7.1976 From Directorate of Estates, Ministry of Works and Housing, New Delhi. Subject: Allotment Rules --Ad hoc allotment in the names of near relations of Government servants who retire from service or die while in service, or in service, or in the case of members of Parliament, who die in harness.

In supersession of all the previous orders on the subject, the undersigned is directed to say that in exercise of the powers conferred under SR 317-B-25 of the Allotment of Government Residences (General Pool in Delhi) Rules, 1963, the Central Government has decided that, when a Government servant who is an allottee of General Pool accommodation, retires from service or dies while in service, his/her son, unmarried daughter or wife or husband, as the case may be, or father or mother, may be allotted accommodation from the General Pool on ad hoc basis, provided the said relation is a Government servant eligible for allotment of accommodation in the General Pool and had been sharing the accommodation with the retired/deceased Government servants/or at least six months immediately preceding the date of the latter's retirement/death.

2. The following procedure shall be adopted for allotment of accommodation on ad hoc basis and recovery of licence fee thereof in such cases :

(i) The eligible dependent will be allotted accommodation one type below his/her entitlement provided that in no case except otherwise specified allotment shall be made of higher type of quarter than in occupation of the retired/deceased officer. Provided further that where the eligible officer is entitled to Type II or any higher type of accommodation, he/she may be allotted accommodation in Type II on ad hoc basis, even if the retired/ deceased Government servant was occupying Type-I accommodation.

(ii)      In no case the quarter in occupation of the retired/deceased officer shall be allotted to the dependent, if the said quarter is required for allotment on change waiting list.
 

(iii)     In all such cases, it is necessary that the eligible dependent should have been residing with the retired/deceased officer concerned for at least six months prior to the latter's retirement/death and that he was not drawing any house rent allowance.
 

(iv)    A request for ad hoc allotment to an eligible dependent may be considered in case the dependent gets an employment in an eligible office even after the retirement/death of the officer provided an appointment is secured within a period of 10 months after the retirement of the officer and 12 months after the death of the officer and that the accommodation in occupation of the officer has not been vacated. Eviction in such cases may not however be delayed in consideration that the dependent is timely to get an appointment.
 



(v)     The clearance of all dues outstanding in respect of the premises in occupation of the retired/deceased officer should be an essential condition for the consideration of an allotment to an eligible dependent. 
 

3. When a Member of Parliament, who was allotted Government accommodation in Delhi/New Delhi, dies in harness, his/her son or daughter, if entitled to allotment of accommodation for the General Pool may be given an ad hoc allotment in the same manner and under the same conditions as have been laid down in preceding para in relation to retired or deceased Government servant. Provided that, when the eligible dependent is entitled to Type-II accommodation, he/she may be allotted accommodation in that type.

Sd/-       

(M.W.K. Yusufzai) Director of Estates."

2. The petitioner is stated to have made the request for ad hoc allotment on the above basis which was declined vide order dated 21st April, 1995 which is filed as Annexure-P6 and reads as follows :

"Government of India Dte. of Estates M/o U.D.

 No. 541/S-VII/RKP FB(A)         Dated 21.4.1995
 

 To
 

The Section Officer, 
High Court of Delhi,  
Delhi.
 

Sub: Regarding Qr. No. S-VI1/541, R.K. Puram. Sir,
 

I am directed to inform you that the regularisation case of Qr. No. S-VII/541, R.K. Puram in the name of Sh. Pramod Kumar has been regretted. Therefore, it is requested to ask Sh. Pramod Kumar to vacate the Qr. to avoid eviction proceedings.
 

Yours faithfully,      

Sd/-             

(A.P.S. HIRA)          
Asstt. Director of Estates" 
 

3. The learned Counsel for the petitioner on the basis of the above said Memorandum has contended that the petitioner is entitled for being granted ad hoc allotment in his name on the retirement of his father on 28th February, 1994. Respondent No. 2 has filed counter-affidavit wherein a plea is taken that the petitioner is not entitled to any accommodation on the basis of the Memorandum issued by the Government on 1st May, 1981. Paragraph VI of the counter-affidavit reads as follows :

"VI. The petitioner son of Shri Gopi Chand got employment in the office of respondent No. 3 on 2.1.1995. He submitted an application for regularisation of allotment on the retirement of his father. In accordance with the Office Memorandum No. 12035(7) 79-Pol. II dated 1.5.1981, the petitioner did not fulfill the condition of eligibility for regularisation of appointment. As per the instruction in Office Memorandum No. 12035(7) 79-Pol. II dated 1.5.1981 a Government servant, who is an allottee of General Pool Accommodation, retires from service, his/her son, unmarried daughter or wife or husband, as the case may be, may be allotted accommodation from the General Pool on an ad hoc basis, provided the said relation is a Government servant eligible for allotment of accommodation from General Pool and had been continuously residing with the retiring Government servant for at least three years immediately preceding the date of his retirement. The request of the petitioner for regularisation of allotment was rejected vide letter dated 21.4.1995 and communicated to the petitioner."

4. It is stated in paragraph 4 of the counter-affidavit in parawise reply as follows:

"4. With reference to paragraph 4 of the said Civil Writ Petition, I say that the facts stated therein are wrong and are denied. I submit that the instruction mentioned in Office Memorandum No. 12029(1) 74-Pol. II dated 5.7.1976 are no longer applicable, I further submit that instruction mentioned in Office Memorandum No. 12029(1) 74-Pol. II dated 5.7.1976 have been revised vide Office Memorandum No. 12035(7)79-Pol. II dated 1.5.1981.1 further submit that as per these instructions a Government servant, who is an allottee of General Pool Accommodation, retires from service, his /her son, unmarried daughter or wife or husband, as the case may be, may be allotted accommodation from the General Pool on an ad hoc basis, provided the said relation is a Government servant eligible for allotment of accommodation in General Pool and had been continuously residing with the retiring Government servant for at least three years immediately preceding the date of his retirement."

5. I have heard learned Counsel for the petitioner. There is no appearance on behalf of the respondents. The operative portion of the Memorandum No. 12035(7)/79-Pol. II dated 1st May, 1981 may also be reproduced as follows :

"In exercise of the powers conferred under S.R. 317-B-25 of the Allotment of Government Residences (General Pool in Delhi) Rules, 1963, the Central Government have decided that, when a Government servant who is an allottee of General Pool Accommodation, retires from service his/her son, unmarried daughter or wife or husband, as the case may be, may be allotted accommodation from the General Pool on an ad hoc basis, provided the said relation is a Government servant eligible for allotment of accommodation in the General Pool and had been continuously residing with the retiring Government servant for at least three years immediately preceding the date of the his/her retirement. In case, however, a person is appointed to Government service within a period of three years preceding the date of retirement or had been transferred to the place of posting of the retiring Government servant any time within the preceding three years, the date on which he was so appointed or transferred would be the date applicable for the purpose. This decision would cover cases of Government servants retiring on or after 7.11.1979."

6. Reading of the above Memorandum will clearly establish that it is not necessary for a Government servant who secures appointment after the retirement of the person who is allotted a Government accommodation to reside with such a person for,at least three years. The petitioner admittedly has been residing with his father for a period of over six months and is qualified for allotment of ad hoc accommodation on the basis of the Memorandum dated July 5, 1976. Reference is also made from the brochure "Compendium of the Allotment of Government Residences (General Pool in Delhi) Rules, 1963 and gist of the Instructions issued by the Ministry of Urban Development and Directorate of Estates" issued by the Ministry of Urban Development and Directorate of Estates. Sub-clause XXX relates to Allotment Rules. The operative portion is reproduced as follows :

"XXX. Allotment Rules -- Ad hoc allotment in the name of near relatives of Government servants who retire from service or die while in service or in the case of members of Parliament who die in harness.

The following procedure shall be adopted for allotment of accommodation on ad hoc basis and recovery of licence fee thereof in such cases :

(i) The eligible dependent will be allotted accommodation one type below his/her entitlement, provided that, in no case, except otherwise specified, allotment shall be made of a higher type of quarter than in occupation of the retired/deceased officer. Provided further that where the eligible officer is entitled to Type-11 or any higher type of accommodation, he/she may be allotted accommodation in Type-II on ad hoc basis, even if the retired/ deceased Government servant was occupying Type-I accommodation.

(ii)      The quarter in occupation of the retired/deceased officer may be regularised in the name of son/daughter, provided he fulfills all the other conditions for ad hoc allotment.
 

(iii)     In all such cases, it is necessary that the eligible dependent should have been residing with the retired/deceased officer concerned for at least six months prior to the latter's retirement/death and that he has not drawn any house rent allowance.
 

(iv)     A request for ad hoc allotment to an eligible dependent may be considered in case the dependent gets an employment in an eligible office even after the retirement/death of the officer provided such an appointment is secured within a period of ten months after the retirement of the officer or twelve months after the death of the officer and that the accommodation in occupation of the officer has not been vacated. Eviction in such cases may not, however, be delayed on consideration that the dependent is likely to get an appointment."  
 

The period for which the dependent is to reside with the retired officer is stated to be six months and no change has been made as is rightly contended by learned Counsel for the petitioner. The Booklet as referred to above is corrected upto July, 1992. Therefore, the plea that the Memorandum of 1981 disqualifies the petitioner for not having stayed with his father for a period of atleast three years is clearly misconceived and cannot be entertained.

7. The petitioner had already filed an additional affidavit dated 21st July, 1999 to establish that in similar circumstances another officer has been allotted ad hoc accommodation. Paragraph 2 of this affidavit reads as follows :

"2. That respondent No. 2 has been allotting houses on ad hoc basis to persons who had obtained service after the retirement of their father even after 1.5.1981. The petitioner has reliably learnt that in the recent past Quarter No. 204, Sector-VII, R.K. Puram, New Delhi, was allotted by respondent No. 2 to one Mr. M.L. Sambharya on ad hoc basis who had obtained service after 11 months of the retirement of his father."

8. In view of the above the petitioner is held entitled for allotment of ad hoc Government accommodation in lieu of the accommodation which was allotted to his father who has since retired on 28th February, 1994. It will, however, be open for the respondents to provide accommodation to the petitioner on the terms and conditions as laid down in the regulations. The writ petition is allowed. Rule is made absolute. There will be no order as to costs.