Delhi High Court

Uma Rani Sharma & Anr. vs Union Of India & Ors. on 4 March, 2009

Author: A.K.Sikri

                                 Unreportable

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      W.P.(C) No. 3032/1998


%                                                   Decided on : 04.03.2009

UMA RANI SHARMA & ANR.
                                                       . . . Petitioners

                   through :      Mr. Anil Kumar Chunduru &
                                  Mr. Neeraj Kr. Jha, Advocates

              VERSUS

UNION OF INDIA & ORS.
                                                       . . . Respondents

                  through:      Mr. B. S. Rajesh Agrajit, Advocate


CORAM :-
    THE HON'BLE MR. JUSTICE A.K. SIKRI
    THE HON'BLE MR. JUSTICE SURESH KAIT

       1.     Whether Reporters of Local newspapers may be allowed to see
              the Judgment?
       2.     To be referred to the Reporter or not?
       3.     Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J. (ORAL)

1. Admitted facts appearing on the record of this Court are sufficient to

allow this writ petition and set aside the order of the Tribunal whereby OA

of the petitioner herein has been dismissed.

2. Father of the petitioner no.2 was working as Senior Pharmacist with

the respondent Railways. In September, 1988 he was posted at Central

Hospital, Delhi. Vide orders dated 12.9.1988 he was transferred to

Jagadhri in Ambala Division. This order reads as under:

"In partial modification of item (2) & (3) of this office notice of even number dated 26.8.1988, C.M.O. has approved the following revised orders in regard to transfer of element from CH to JUDW Hospital for posting orders of Pharmacist:

The element of the post of Sr. Pharmacist Gr. Rs.1640-2900/RPS Central Hospital, instead of Gr. Rs.1400-2600/RPS is temporarily transferred to Jagadhri Hospital in exchange with the post of Pharmacist Gr. Rs. 1350-2200/RPS from Jagadhri Hospital to Central Hospital and Sh. Ved Prakash, Sr. Pharmacist is accordingly posted in Gr. Rs. 1640/2900/RPS in Jagadhri Hospital."

3. It is not in dispute that as per the aforesaid orders, the father of

petitioner no.2, Ved Prakash Sharma (hereinafter referred as deceased

employee) was transferred temporarily which is manifest from the plain

language of the order itself. It is also an admitted position that in case of

temporary transfers, the concerned employee is allowed to retain the staff

quarters at the place of post from where he is transferred to another

station. The deceased employee was allotted Railway quarter No. C-3/A,

Railway Colony, Lajpat Nagar, New Delhi and therefore he claimed that he

had right to retain that quarter during the period he was temporarily

transferred to Jagadhri. The provision relating to „temporary‟ transfer and

retention of railway quarter by an employee on such transfer reads as

under:

"i) During the entire period of "temporary" transfer an employee may be permitted to retain the quarters at former place of posting on payment of normal rent/flat rate of licence fee rent. Temporary transfer should not, however, be ordered for a period of more than 4 months unless there are pressing circumstances."

4. Since the posting of the deceased employee continued at Jagadhri

beyond four months, the respondent asked the deceased employee to

vacate the staff quarter and notice dated 10.7.1989 was served upon him

terming his occupation as unauthorized. The deceased employee

approached the Tribunal and filed OA no. 1770/1989. This OA was

disposed of vide order 28.11.1989 directing him to make representation to

the competent authority within a fortnight with direction to the respondent

to consider and decide the same. It was also directed that till the time his

representation is disposed of he would not be dispossessed. Though the

deceased employee made representation dated 30.1.1990, his

representation was not decided at all and that is the position till date.

4. The deceased employee in the meantime was transferred back to

Delhi vide orders dated 27.7.1990. However he was not relieved

immediately and could join back in Delhi on 14.12.1990.

5. Though no orders on the representation preferred by the deceased

employee pursuant to direction dated 28.11.1989 of the Tribunal was

passed by the respondent, the respondent served notice upon the deceased

employee directing recovery of market rent from his salary vide orders

dated 17.8.1990. The deceased employee rushed to the Tribunal again and

OA 2436/1990 seeking quashing of demand contained in the letter dated

17.8.1990. Interim order dated 22.1.1991 was passed in the said OA

directing respondent not to deduct any amount from the salary of the

deceased employee pursuant to the admission dated 17.8.1990 till further

orders. As the ill-luck would have been, within few days thereafter, i.e., on

27.1.1991, he passed away.

6. Deceased employee was survived by his wife petitioner no.1, two

unmarried daughters and three sons including petitioner no. 2 herein.

Since the deceased employee died in harness, request for compassionate

appointment was made which was duly considered by the respondent and

finding justification in this request, the Petitioner no. 2 was given

appointment as Clerk in Stores Branch with effect from 9.5.1991. Thus, he

got appointment within four months from demise of his father.

7. He on his appointment requested for regularization of the aforesaid

staff quarter. This request was turned down by the respondent vide letter

dated 8.10.1991. However this was communicated to the petitioner almost

three years thereafter, i.e., only on 4.5.1994. Against this rejection,

petitioners approached the Tribunal and filed OA 2664/1996. The said OA

has been dismissed by the Tribunal vide its judgment dated 29.5.1998.

Assailing this judgment present writ petition is filed under Article 226 of

the Constitution of India.

8. We may note at this stage that second OA no. 2436/1990 which was

filed by the deceased employee challenging recovery of market rent came

up for hearing in the year 1995 and was decided vide orders dated

15.5.1995. Direction was given to the respondent by the Tribunal to

consider the representation dated 30.1.1990 preferred by the deceased

employee or to take a decision on the representation having regard to the

circumstances explained by him. The respondents were directed to take

such a decision within one month. However, no orders were passed by the

respondents even on this representation.

9. First question, in the aforesaid factual background that arises for

consideration would be as to whether the deceased employee was in

unauthorized occupation of the premises. As pointed out above orders of

transfer dated 12.9.1988 clearly stipulated that it was a temporary

transfer. It is also not in dispute that on temporary transfer the deceased

employee had a right to retain the staff quarter allotted to him in Delhi.

The only ground on which the respondents have treated him as

unauthorized occupant is that his stay in Jagadhri was for a period longer

than four months. We have already extracted the relevant provision given

therein which would make it clear that in case of temporary transfers they

duty is cast upon the department to ensure that said transfer is clearly not

for more than four months, unless it continues beyond four months under

pressing circumstances. Therefore, it was the obligation of the

respondents to ensure that within four months the deceased employee is

transferred back from Jagadhri to Delhi. That was not done. No reasons

are forthcoming as to why the deceased employee was not sent back. We

are not therefore in a position to find out as to whether he was made to

continue in Jagadhri under pressing circumstances or it was lapse on the

part of respondent. However, one thing is clear. The continuation of the

deceased employee at Jagadhri for more than four months was not his

asking; it was not his choice; it could not be attributed to him at all and

this was a situation created by the respondent themselves. Thus, on

account of their own lapse they could not have penalized the deceased

employee and now cannot penalize the petitioners.

10. Another aspect which needs to be highlighted is that the Tribunal

had directed the respondents on two occasions to consider the

representation of the deceased employee and passed appropriate orders.

Even here the respondents remained adamant. Representations of the

deceased employee were not considered and no orders passed thereon.

11. Under these circumstances, it does not lie in the mouth of the

respondents to contend that the deceased employee was in unauthorized

occupation. We are of the opinion that the transfer of the deceased

employee remained temporary and therefore, he had right to retain the

staff quarter in Delhi. Consequently, he never became unauthorized

occupant of the said staff quarter.

12. Once we proceed on that basis, answer to the second question,

namely, whether petitioners are entitled to get the said staff quarter

regularized does not pose any problem. On 27.1.1991, father of the

petitioner no. 2 passed away. Petitioner no. 2 got appointment within four

months. The petitioner no. 2, under these circumstances, is entitled to get

the staff quarter regularized in terms of respondents‟ policy dated

22.4.1982. Operative portion whereof is extracted below:

"It is clarified that in cases where a specified dependent relative (son/daughter/wife etc) secures an appointment on the Railway on compassionate ground within a period 12 months on death of the railway employee on whom he/she was dependent, he/she can be allotted a railway quarter on out of turn priority basis even if the appointment is to a

station other than the station of posting of the late railway employee. This is subject to the condition that the deceased employee or the specified relative did not/does not own a house at the place of posting"

13. In view of respondents‟ own circular dated 21.6.1990 which, inter

alia, stipulates that a person who is given appointment on compassionate

basis even as trainee and has to undergo a training, he would be entitled

to retain the railway accommodation allotted to the deceased employee

shall be regularized.

14. Accordingly, we set aside the judgment dated 29.5.1998 rendered by

the Tribunal. Consequently prayer contained in OA no. 2664/1996

preferred by the petitioners before the Tribunal is allowed.

15. The petitioners are, therefore, held to be entitled for regularization

of the staff quarter no. C-3/A, Railway Colony, Lajpat Nagar, New Delhi.

The Petitioners shall be entitled to costs quantified at Rs.10,000/-.

16. Learned counsel for the petitioners submits that terminal dues