Union Of India (Uoi) And Ors. vs Shri Ganesh Upadhyaya And Anr.
2002 Latest Caselaw 224 Del

JUDGMENT

A.K. Sikri, J.

1. Union of India has filed this Writ Petition against the judgment and Order dated 5th June, 1998 passed by the learned Central Administrative Tribunal in O.A. No.2405/97 thereby allowing the said OA filed by the respondent herein. By the impugned judgment the learned Tribunal has directed the petitioners herein to regularise Type IV quarter No.1018, Sector VIII, R.K. Puram, New Delhi (hereinafter referred to as the Quarter, for short) in the name of the applicant w.e.f. 1st June, 1997 subject to payment of license fee as per Rules. The case of the petitioners is that the respondent herein was not eligible for the said

CWP.7705-99

allotment from the aforesaid date and therefore he is liable to pay penal rent for the period in question.

The fact of the matter is not in dispute.

2. Succinctly stated, the respondent herein was appointed as SSO Grade II (Rs.2200/- - Rs.4000/-) and was transferred to Delhi in November 1992 where he resided with his father who was Assistant Director (Intelligence Bureau) and was allotted the Quarter. The respondent's father retired on 31st January, 1997. Therefore it is not in dispute that on the retirement of his father the respondent fulfillled all requisite conditions for 'out of turn allotment'. He accordingly submitted application dated 17th February, 1997 for regularisation of the Quarter in his favor consequent to the retirement of his father. However, instead of regularising the allotment of the Quarter the petitioners allotted a Type II quarter being quarter no.1275, Sector VIII, R.K. Puram, New Delhi vide allotment letter dated 27th August, 1997. Challenging this allotment of an inferior type and claiming regularisation of the Quarter, allotted to his father before his retirement, the respondent filed the aforesaid Original Application. As already noticed above, this O.A. has been allowed by the impugned judgment.

3. Challenging the validity of the impugned judgment it was contended by learned counsel for the petitioner that as per the norms laid down by the Supreme Court, year wise list of the applicants for allotment was required to be prepared. The Government had issued O.M. dated 15th October, 1993 inviting applications for this purpose pursuant to which the respondent had submitted his application. Applications vide this O.M. were invited for allotment in the year 1994-95 which was extended by O.M.dated 8th December, 1995 till all applications under it were first considered. Accordingly on 17th February, 1997 when the respondent applied, his application was considered as per the aforesaid O.M. for a type IV quarter. The basic pay as on cut-off date, which was fixed as 1st March, 1993, of the respondent should have been Rs.2475/-. However, the basic pay of the respondent on that date was Rs.2425/-. It was also submitted that as per the direction of the Supreme Court on 17th July, 1995 in Civil Writ Petition No.584/95 no new allotment year was to be announced till the pending applications were exhausted. Referring to the applications submitted by the respondent no.1 it was mentioned that column 2 thereof related to the basic pay as on 1st October, 1993. However, the respondent no.1 after scoring out the date of 1st October, 1993 mentioned his own date of 31st January, 1997 and also his pay scale of Rs.3100/- as on 31st January, 1997.

4. Thus according to the petitioners what was required to be seen was the eligibility as on cut-off date - 1st October, 1993 and not on 31st January, 1997. It was further submitted that at the time when the matter was argued and disposed of by the learned Tribunal, counsel for the petitioners was not present. One Shri Tek Chand, a clerk in the Office of the petitioner was present whose statement was recorded to the effect that relevant date would be 31st January, 1997 when father of the respondent retired and on this erroneous belief Order was passed.

5. Learned counsel for the respondent, on the other hand, supported the Order of the learned Tribunal and urged that the Tribunal was right in taking into consideration the salary of the respondent which he was drawing on 31st January, 1997, the date on which the father of the respondent retired. As, on that date, salary of the respondent was much in excess of Rs.3000/-, he was entitled to type IV (Spl.) and his adhoc allotment/regularisation was to be made one type below as per instructions and in this way the Quarter which was in possession of father of the respondent being a Type IV quarter should have been regularised in his name. He further submitted that the following factual position which is not in dispute would clearly confirm the entitlement of the respondent to the Quarter.

(a) the father of Respondent No.1 retired from service on 31.1.1997. He was allotted type IV accommodation no.1018/Sector VIII, R.K. Puram, New Delhi.

(b) The Respondent no.1 was working in the Ministry of Non-Conventional Energy Sources, Government of India and he has been sharing accommodation with his father from November 1992 and he has not been drawing HRA since then.

(c) The Respondent No.1 has applied for regularization/allotment of accommodation on out of turn basis on the retirement of his father.

(d) The Respondent no.1 was drawing a basic pay of Rs.3100/- with effect from 1.3.1996 and was eligible for allotment of Type IV (Special) accommodation.

(e) The Respondent no.1 was occupying a Type IV accommodation, which is one type below his entitlement, which was allotted to his father.

(f) The Respondent no.1 was entitled to regularization of the same accommodation in his name which was allotted to the father of Respondent no.1 on basis of OM dated 1.5.1981 (Annexex P-4 (Colly - page 59 of the CWP) as the said accommodation is a Type IV accommodation which is one type below the entitlement of the Respondent no.1 as the Respondent No.1 is entitled for the Type (IV) Special accommodation.

(g) The Respondent No.1 was also entitled for regularization of Type IV Qr.No.1018/Sector VIII, R.K. Puram, New Delhi in his name with effect from 1.6.1997, the date from which the said allotment was cancelled in the name of the father of the Respondent No.1 on his retirement from service as provided in para (VIII) of the OM No.12035 (14)/82-II (Vol.III (i) dated 9.11.97 which provides as under:

. "It has been decided that the date of regularisation should be from the date of cancellation in case the eligible dependent is already in Government service and is entitled for regularisation and not from the date of issue of the orders which was the practice being followed till now."

6. He also referred to O.M. dated 1st May, 1981 issued by the Government dealing with concession of ad-hoc allotment of General Pool accommodation admissible to eligible dependent/relation of government employees on their retirement.

7. The question to be determined is as to whether the eligibility of the respondent for a particular type of accommodation has to be as per the cut off date prescribed in O.M.dated 15th October, 1993 when the applications for allotment year 1994-95 were invited or it has to be with reference to the date the father of the respondent retired i.e. 31st January, 1997.

8. After considering the argument of both the parties and examining the various documents produced, we are of the view that the learned Tribunal was right in its interpretation of this O.M. holding that the relevant date would be the date on which father of the respondent retired i.e. 31st January, 1997 which was the date on which the cause of action arose in favor of the respondent no.2 to claim for 'out of turn allotment'. O.M. dated 1st January, 1993 is applicable in those cases where the employees seek the allotment in normal course while in employment but not in possession of any government accommodation/government accommodation type to which they may have become entitled. It does not take care of the situation where father or other relative is already in occupation of the government accommodation to which now the son/other relative claims entitlement to after the retirement of the former. Such cases are governed by different O.M. relating to 'out of turn' allotment and concession to be given while giving such allotment. Vide O.M. dated 9th November, 1987 the Government had given certain clarification/decision. Para 8 thereof deals with date of regularisation and reads as under:-

Date of regularisation :-

"It has been decided that the date of regularisation should be from the date of cancellation in case the eligible dependent is already in Govt. service and is entitled for regularisation and not from the date of issue of the orders which was the practice being followed till now."

9. Even if there was any ambiguity/uncertainty about the position the same is set at rest by the Government itself and O.M. dated 20th May, 1999 has been issued by the Directorate of Estate, Ministry of Urban Development clarifying the position. The opening para of this O.M. in no uncertain terms states that keeping in view the hardship and dislocation being faced by the family of the allottee it has now been decided that the approval of the competent authority that entitled type of accommodation will be regularised/allotted to ward/spouse in the event of death/retirement of the allottee, on payment of normal license fee, subject to fulfillment of the conditions mentioned therein. Cases of retirement are dealt in para 2 of the said O.M. and sub-para (iv) thereof exclusively mentions that the emoluments drawn by the ward/spouse on the crucial date/cut-off date for the relevant allotment year would be taken into account for the purpose of determination of the entitled type of accommodation. Thus, as per this O.M. the emolumnets which are drawn by the ward/spouse as on the date of retirement of his father (in the present case) are to be taken into consideration. This would make 31st January, 1997 as the relevant date when the father of the respondent retired and not 1st October, 1993. Nodoubt the clarification issued is in the year 1999 whereas the case in question arose in the year 1997. However, keeping in view the nature of O.M. dated 20th May, 1999 it goes without saying that this was in the nature of clarification of the position prevailing even earlier as well. Any other interpretation will lead to unjust results. The very purpose for which clarification is issued by O.M. dated 20th May, 1999 would be defeated when the purpose was to ameliorate the hardship caused to the ward/spouse of the retired/deceased employee. Any other interpretation would negate the purpose for which the relaxation in Rules while giving 'out of turn allotment' is to be made. Therefore, in view of the foregoing disucssion, we uphold the principle laid down by the learned Tribunal in the impugned judgment to the effect that the entitlement of the respondent was to be reckoned from the date of actual retirement of the ad-hoc allottees i.e. when the father of the respondent retired and not the cut off date mentioned in O.M. dated 1st October, 1993. The Tribunal in this connection rightly pointed out:-

"In this connection Shri Behera seeks to buttress his argument by stating that a reasonable interpretation of the aforesaid OMs dated 19.11.87 and 17.12.91 points to the date of retirement of applicant's father as being the operative date in such cases also because otherwise, if the applicant has not been in service before 1993, he would not have been entitled to out of turn regularisation of the quarter at all in terms of the aforesaid two OMs which would not have been the intention of the OMs."

10. The result of the aforesaid discussion is that this Writ Petition fails and is dismissed.

11. There shall be no order as to costs.