Federation Of Railway Officers ... vs Union Of India And Anr.
2001 Latest Caselaw 1885 Del

JUDGMENT

A.K. Sikri, J.

1. The Federation of Railway Officers' Association has come to this court by means of the present petition filed under Article 226 of the Constitution of India. The subject matter is arbitrary, discriminatory, illegal and unjustifiable allotment and retention of the Railway pool houses to ineligible officers/staff by the respondents. The petition is in the nature of public interest litigation. The grievance made by the petitioner is that the respondents have been allotting official accommodation from the Northern Railway pool at Delhi, which accommodation is specifically meant for allotment to officers of the Northern Railways posted at Delhi, in favor of those officers/staff who are neither entitled to nor eligible for housing accommodation out of the said pool and thereby gravely aggravating the existing acute housing problem being faced by the officers of Northern Railways posted at New Delhi. It is stated in the petition that from time to time the Railway have been coming out with circular/notifications/office orders regulating and defining the manner in which the said Northern Railway pool houses are required to be allotted. However, in violation of such rules, guide-lines etc. as mandated in the allotment rules, the respondents are making the allotments in an arbitrary manner. Violations of following nature are highlighted:

a) Retention of official accommodation by the officers posted outside the Delhi.

b) Retention of official accommodation by the officers posted on deputation to other Ministries/Departments in India including DMRC.

c) Post-retirement retention of houses.

d) Allotment of northern railway pool houses in favor of the officers who had come on deputation to Railway Board from other railway or Government Departments.

e) Allotment of the residential houses meant for the officers/staff to unions/federations.

f) Officers on special duty posted at new zones allowed to retain houses at New Delhi.

2. When the matter came up for arguments on 28th November, 2001 learned counsel for the petitioner fairly accepted the position that the purpose of the present petition stands substantially achieved in view of various directions given in this case from time to time and action taken by the respondents pursuant thereto. It would be appropriate to first take stock of these developments.

3. Along with the petition the petitioner also filed CM 9336/99 wherein the petitioner sought interim direction to the effect that allotment of railway hoses be made in accordance with the extent rules etc.

4. By order dated 28th September, 1999 the respondent were directed to make allotment only in accordance with extant rules, guide-lines, criteria, circular and office orders. On 13th March, 2000 while issuing Rule DB in the petition, it was ordered that this interim order would continue pending the petition. It was also clarified that interim order would apply even to retention of quarters i.e. no person would be allowed to retain the quarters in violation of existing rules, guide-liens, criteria and circular.

5. However, the respondents tried to over-reach the aforesaid orders by issuing circular dated 18th July, 2000. By this circular the respondents introduced a power to relax any or all the existing rules. This act of the respondents forced the petitioner to file CM No. 6779/2000 seeking stay of the operation of this circular. The petitioner made a grievance that such a circular would have the effect of annulling the existing rules, guide-lines, criteria relating to allotment of railway accommodation as such wide and unrestricted power would be misused and abused by the respondents by passing the criteria for allotment laid down in the rules etc.

6. Another application being CM 9403/2000 was filed for the purpose of seeking amendment of the writ petition and order dated 16th October, 2000 was passed to the following effect:

"Prayer for amendment is allowed.

Amended petition shall be filed within two weeks. In the meantime, considering the prayer for stay of the impugned circular, we direct that power for relaxation, if any, shall only be made for a class of employees and not for individuals. We are passing this order in view of the specific statement made by learned senior counsel for Ministry of Railways to the effect that the power is meant to take care of inconveniences and difficulties of a class of employees who may be required to undertake specific works or jobs and retention of quarters become necessary in public interest.

The application stands disposed of".

7. Amended writ petition was filed to which the respondents filed amended counter affidavit in which the respondents sought to explain the position in respect of the alleged irregularities pointed out by the petitioner in the petition. While the respondents accepted that in certain cases the officers who were not entitled to retain the accommodation were allowed to stay in the official accommodation even when they had posted outside Delhi or those who were posted on deputation to other Ministries/Departments or those who had retired or those who had come on deputation to Railway Board or other Railway or Government Departments. The respondents sought to justify these cases of over retention on their own facts. When the matter came up for hearing on 28th May, 2001 after considering the submissions of counsel for the parties, following order was passed:

"It is stated by learned counsel for respondents No. 1 & 2 that it has been decided to exclude the following portion from the decision on sub-head (vi) of Board's meeting."

"except on case to case basis on the merits of the case by the Minister in charge, on the recommendations of the Board."

Let an affidavit to that effect be filed. Details of over-stay by the members of the Board and the Chairman beyond the permitted limited of eight months shall also be furnished.

List on 30th July, 2001."

8. After some adjournments, the respondents filed the affidavit dated August, 2001. In this affidavit the respondents made a categorical statement that the orders contained in Board's letter No. E(G) 2000 QR1-23 dated 30th November, 2000 as further amended vide letter No. E(G)2000 QR1-23 dated 1st June, 2001 strictly prohibit relaxation in individual cases. It also affirmed that the portion of the decision taken in the Board meeting dated 15th March, 2001, namely, "No relaxation other than what has been stipulated above will be permitted except on case to case basis on the merits of the case by the Minister-in-charge, on the recommendations of the Board" have been excluded. The respondents also filed by way of Annexure R-1 a copy of instructions dated 1st June, 2001 now being strictly implemented.

9. In this affidavit, it was also stated that in respect of earmarked/non-pooled railway accommodation which are allotted only to Chairman, Railway Board, other Board Members and Secretary, instructions have been duly issued making maximum period of retention as eight months, of which four months' retention could be considered only on educational and sickness account. Order dated 13th July, 2001 passed to this effect was also annexed as Annexure R-2.

10. It was also stated that after the issuing of interim dated 28th September, 1999 by this court there is no cases of over-stay by Chairman and Member of the Railway Board beyond the permitted limit of eight months. Statement in respect of over-stay in the past for certain specific reasons was annexed as Annexure R-3.

11. With the aforesaid affidavit filed on behalf of the respondents, the grievance of the petitioner in this petition form (a) to (d) and (f) as mentioned above, stood satisfied. However, learned counsel for the petitioner submitted, when the matter was taken up on 19th October, 2001, that the respondents had allotted houses to various Trade Unions and further that the respondents had not taken any steps for recovery of penal rent from the retired employees who had over-stayed in the official accommodation. By order dated 19th October, 2001 the respondents were directed to file affidavit on the aforesaid aspects. The affidavit dated Nov, 2001 has been filed pursuant to this direction. In this affidavit, the respondents have explained the procedural and legal difficulties in making recoveries from those who had over-stayed in the official accommodations in the past inasmuch as most of the cases of such over-stay are old cases and the action would be barred by law. There would be a problem of limitation as well, particularly, in the cases of those officers who have retired and it may not be possible to recover the amount from their pension and also that action against such persons would amount to retrospective punishment.

12. In so far as allotment of residential accommodation to the Unions/Federations is concerned, it is stated in the affidavit that such allotment of accommodation to these Unions was made because it was considered absolutely necessary for maintaining harmonious relations and industrial peace. 16 allotments have been made in Delhi area to the Unions and all are recognised Unions. First such allotment was made in the year 1967 and no allotment has been made since 7th June, 1999.

13. As already pointed out above, Mr. Prashant Bhushan, learned counsel for the petitioner, was candid enough to accept that the purpose of the petition had been substantially achieved inasmuch as: (a) there were no cases of over-stay at present and illegal occupants had vacated the accommodation; (b) that the respondents had withdrawn their circular dated 18th July, 2000 and issue instructions dated 1st June, 2001 as per which the rules had to be strictly followed and no relaxation in individual cases was permissible and

(c) the maximum period of the retention even in the cases of Chairman, Railway Board and other Board Members and Secretary, Railway Board was eight months out of which four months' retention could be considered only on education and sickness account. However, his submission was that the court should not condone the past lapses of the respondents and the irregularities committed in the past should be appropriately dealt with by recovering the amount from those officers who had over-stayed in the official accommodation. His submission was that if this sis not done, it would encourage the respondents to act in the same manner in future again after this petition is disposed of.

14. We may point out that in so far as the matter of recovery of penal rent is concerned, there is force in the submissions made by the respondents and it may not be appropriate to direct the respondents to take an action against those officers/ex-officials who over-stayed in the official accommodation beyond the permissible limit, more so when it would be legally impermissible. Statement produced by the respondents along with their affidavit dated Aug, 2001 (Annexure R-3) would show that most of these officers had vacated the accommodation even before filing of the present petition by the petitioner which was filed on 18th August, 1999. Such persons who over-stayed in the accommodation had vacated the same on 14th August, 1999. Other cases relate to the period from 1992 to 1998. There is not a single case of an official staying in the official accommodation beyond the permissible period after 14th August, 1999.

15. In so far as apprehension of the petitioner that the respondents may violate their rules in future as well, it would be sufficient t state that the respondents have made a solemn statement in the affidavit dated August, 2001 to the effect that they would strictly follow the rules for allotment and there would not be any relaxation in individual cases. Interims orders are also made to this effect in this petition and we make it clear that the same would remain in force. In view thereof, the respondents (sic) expected to adhere to their own rules while making the allotment.

16. With these observations and as no further orders are required in this petition which as served its purpose, this writ petition stands disposed of.