K.K.Kaushik vs Union Of India & Ors
2009 Latest Caselaw 4798 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                   W.P. (C.) No.7579/2008

%                              Date of Decision: 24.11.2009

K.K.Kaushik                                                            .... Petitioner
                               Through Mr.L.R.Khatana, Advocate

                                           Versus

Union of India & Ors                                             .... Respondents

                               Through Mr.H.K.Gangwani, Advocate for the
                                       respondent No.1.
                                       Mr.Rajiv Nanda, Advocate for the
                                       respondent Nos.2 & 3.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be                         YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                            NO
3.     Whether the judgment should be reported in                        NO
       the Digest?


ANIL KUMAR, J.

*

The petitioner has impugned the order dated 22.1.2008 of Central

Administrative Tribunal in OA No.2499/2006, K.K. Kaushik vs. Union

of India & Ors., declining to set aside the orders dated 13.7.2006 and

17.11.2006 passed by the respondents. By these orders the

respondents rejected the representations made by the petitioner against

his being declined HRA for the period he was allowed mutual exchange

of government accommodation with his son in law pursuant, to his

undertaking that he will not vacate before the expiry of two years.

To comprehend the disputes some of the relevant facts are that

the petitioner is an ACP-Special Cell. His son-in-law is also a police

officer, however, junior in rank. The petitioner belongs to Delhi,

Andaman and Nicobar Island Police Service, whereas his son-in-law is

in Delhi Police. The petitioner and his son-in-law both had residential

accommodation and the petitioner applied for exchange of his

residential accommodation with the residential accommodation of his

son-in-law. The mutual exchange was permitted to the petitioner

whereby his accommodation was given to his son-in-law and the

accommodation of the petitioner's son-in-law was occupied by the

petitioner on the condition that in case either of them will surrender

their government accommodation within two years from the date of

mutual exchange, they would be liable for the consequences as per (SO)

No.3/2006 and an undertaking to that effect was also executed by the

petitioner along with his son-in-law.

The respondents under the provisions of Delhi Police Act, 1978,

had issued a standing order (SO) No.3/2006. Under the terms and

conditions which were agreed by the petitioner, one of the term was

that in case of vacation of the exchanged residential accommodation by

him prior to said period of two years, he will have to forego his HRA for

the remaining period of two years and he would be debarred from

allotment of another quarter.

Since the petitioner vacated his exchanged accommodation before

the expiry of two years despite an undertaking given by him, as such

his house rent allowance was withheld till 24.2.2008, as mutual

exchange of government accommodation was permitted to the petitioner

on 24.2.2006. By order dated 12.6.2006, the petitioner was further

debarred for allotment of government quarter for that year and the

government quarter vacated by him was allotted to HC Vinod Kumar.

The petitioner made a representation against the order dated

12.2.2006 contending, inter alia, that his son had suffered losses in his

business which compelled him to move with his son and consequently

he had to vacate the government accommodation. In the circumstances,

petitioner contended that the order withholding house rent allowance

till 24.2.2008 be set aside. The petitioner contended that order of

withholding of payment of HRA after vacation of government quarter is

in contravention of financial rules which give him the Constitutional

right to get the HRA and thus under the standing order issued by the

respondents his constitutional right to get the HRA cannot be denied. It

was asserted that the order of withholding the HRA has put him in

financial hardship and no loss is caused to the respondents as the

government quarter vacated by him prior to expiry of two years period

was immediately allotted to another occupant from 12.6.2006.

The representations of the petitioner were rejected and the order

of withholding the HRA uptil 24.2.2008, till the expiry of two years

period, was upheld by the respondents. Aggrieved by the orders of

rejection of representations of the petitioner, he filed a petition being OA

No.2499/2006, K.K. Kaushik vs. Union of India & Ors before the

Central Administrative Tribunal, Principal Bench, New Delhi, which was

also dismissed by the Tribunal by order dated 22.1.2008 which is

impugned by the petitioner before this Court.

The principal ground raised before us by Mr. Khatana, learned

counsel for the petitioner, is that the petitioner has a right to get his

HRA under the service rules applicable to him and the standing order

framed under the provisions of Delhi Police Act, 1978, will not disentitle

him to get his HRA as the terms and conditions of that Standing order

will not be applicable to him. Reliance has been placed on Section 5 of

Delhi Police Act, 1978 which categorically stipulates that condition of

service of the members of Delhi Police will not be applicable to the

members of Delhi, Andaman and Nicobar Island Police service

(DANIPS). He submits that, admittedly, the petitioner is a member of

the DANIPS.

The petitioner had also challenged the Constitutional validity of

standing order No.3 of 2006 framed by respondent No.2 under the

provisions of Delhi Police Act, 1978, contending the same cannot

override, supersede or in any manner derogate the provisions of Section

5 of Delhi Police Act, 1978. The petitioner, however, had filed a affidavit

dated 2.3.2003 deposing categorically that in view of his plea that

standing order 3/2006 issued by Commissioner of Police, Delhi, is not

applicable to the petitioner, therefore, the petitioner has given up his

contention concerning the Constitutional validity of the standing order

3 of 2006 issued under Delhi Police Act, 1978.

The petition is contested by the respondent contending, inter alia,

that the condition of withholding the HRA to the petitioner was applied

on his undertaking and acceptance of the term of mutual exchange. It

is asserted that once the petitioner, pursuant to his undertaking, gave

his accommodation to his son-in-law and occupied accommodation of

his son-in-law who was a junior officer, on violation of his undertaking,

he is liable for the consequence thereof and he cannot allege that the

ramification of the violation of terms and conditions of mutual exchange

will not be applicable to him on the ground that SO 3 of 2006 was

issued under the provisions of Delhi Police Act, 1978.

The respondents also contended that the representations made

by the petitioners were considered in detail and had been rejected. The

Tribunal has also not granted any relief to the petitioner in the facts

and circumstances of the case especially in view that the petitioner by

his own volition accepted the consequences of vacating the government

quarter before the expiry of two years which was the relevant term of

permitting mutual exchange to the petitioner and after availing the

mutual exchange on the terms and conditions which were known to the

petitioner and which could not be denied by the petitioner, he cannot

absolve himself of the consequences and the liability. The Tribunal had

declined to exercise any jurisdiction in favour of the petitioner in the

facts and circumstances. In the circumstances, it is contended that the

petitioner is not entitled for any relief and the writ petition be

dismissed.

We have heard the counsel for the parties in detail. The learned

counsel for the petitioner has relied on (2005) 5 SCC 451, Additional

District Magistrate (Rev.) Delhi Admn. Vs Shri Ram to contend that the

SO No.3 of 1996 which came into force on 3rd February, 2006, could not

be applied to the petitioner as the petitioner is not governed by the

condition of service of Delhi Police as the petitioner belongs to Delhi,

Andaman and Nicobar Island Police and the rules of Delhi Police are not

applicable to the service of the petitioner which is categorically

contemplated under Section 5 of Delhi Police Act, 1978. In Addl.

District Magistrate (supra), relied on by the petitioner, the amendment

to Rule 49 and Rule 63 had affected the rights of tenure holder

adversely which was contrary to the provisions of Delhi Land Revenue

Act and Delhi Land Reforms Act. In the circumstances it was held that

conferment of rule making power by an Act does not enable the rule

making authority to make a rule which travels beyond the scope of

enabling act, which is inconsistent therewith or repugnant thereto.

In case of petitioner, the plea of the petitioner is that the

provisions of Delhi Police Act, 1978 are not applicable to him. The case

of the petitioner is not that the SO 3 of 2006 framed under the provision

of Delhi Police Act, 1978 is repugnant to the provisions of Delhi Police

Act, 1978. Apparently the petitioner is contending that the SO 3 of 2006

is not applicable to him and he has not challenged the validity of the

same. The plea of the petitioner is therefore, different than the ratio of

the case relied on by the petitioner. The Supreme Court in Rafiq Vs

State, 1980 SCC (Crl.) 946 had held that the ratio of one case cannot be

mechanically applied to another case without having regard to the fact

situation and circumstances obtaining in two cases. In Bhavnagar

University v. Palitana Sugar Mills Pvt Ltd (2003) 2 SC 111 (vide para

59), the Supreme had observed:-\

" It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

The tribunal while dismissing the petition of the petitioner had

noted that the petitioner exchanged the house allotted to him with his

son-in-law knowing the consequences of the same. When the petitioner

exchanged his house and opted for a house which was for the personnel

of Delhi police, he had not reserved his right to be governed by the rules

applicable to accommodation of General Pool for which the petitioner

was entitled being a member of Delhi, Andaman and Nicobar Island

Police. The petitioner sought exchange of his accommodation with that

allotted to his son in law by resort to clause (xxvi) of the same (SO)

No.3/2006. If the said (SO) No.3/2006 was not applicable to him, he

could not even have sought the exchange as sought by him. After

having taken advantage of the provision for exchange in the said SO,

the petitioners attempt to wriggle out of the conditions on which the

exchange was permitted cannot be permitted. He cannot approbrate

and reprobate. Rather his undertaking amounts to abide by the rules

framed under Delhi Police Act, 1978 for the said accommodation whose

exchange was sought by the petitioner. On the specific undertaking of

the petitioner, he was allowed to exchange his accommodation with the

accommodation of his son in law.

As a term of exchange of accommodation, it was within the

knowledge of the petitioner and it was also brought to his notice that if

any of the officers who had exchanged the accommodation, would

vacate the accommodation before the period of two years from the date

of mutual exchange, he shall not be granted HRA for the remaining

period from the date of surrender/vacation of the accommodation till

the completion of two years from the date of mutual exchange. The

petitioner had given an undertaking at the time of submitting the

request for mutual exchange. He did so by design so that his son in law

could jump the queue and get an accommodation in preference to other

police officials higher in seniority to occupy a house which was occupied

by the petitioner. Though the petitioner in his representation had

contended that he had to shift with his son who had suffered losses in

his business, however, whatever may be reason, the petitioner accepted

the applicability of the condition and consequence of it on his own

volition. The undertaking given by the petitioner and his son in law is

as under:

" Undertaking

We hereby declare and undertake that we Rajesh Sharma Rank & No.SI, D-158 and Shr. K.K.Kaushik Rank and No. ACP/Hq/Sp.Cell are doing mutual exchange of our Government quarters solely at our own will and we have not been pressurized by anybody at all to do so. We will also not surrender/vacate the Government quarters for a period of two years from the date of mutual exchange. In case something adverse come to notice later on mutual exchange may be cancelled Applicants

Name, Rank & NO. Name, Rank & NO.

                         Rajesh Sharma                     K.K.Kaushik
                         SI. D-158                         ACP

                            Place of Posting               Place of Posting
                            Spl.CP (Ints & Ops)            ACP/HQ/Sp.Cell"

In the circumstances, the petitioner cannot be allowed to contend

that he is not bound by the consequences of vacating the

accommodation prior to period of two years on the ground that he is

member of service of Delhi, Andamans and Nicobar Island Service and

consequence of SO 3 of 2006 cannot be applied to him. This is not the

case of the petitioner that he was not aware of said SO 3/2006, as he

had exchanged the accommodation on 1st March, 2006 whereas the SO

3 of 2006 came into being on 3rd February, 2006. If the petitioner had

given up his right for HRA for two years as consequence of condition for

mutual exchange which benefited his son in law, the petitioner cannot

be allowed to evade the consequences on the ground of non applicability

of one of the term of the SO 3 of 2006.

The petitioner filed an affidavit dated 2nd March, 2009 and had

given up his plea of the Constitutional Validity of the standing order

no.3 of 2006 issued by the Commissioner of Police. The petitioner is not

entitled for the relief against withholding of his HRA also on the ground

that the accommodation vacated by him was allotted to another

occupant in the facts and circumstances.

The High Court in exercise of its jurisdiction under Article 226 of

the Constitution of India can take cognizance of the entire facts and

circumstances of the case and pass appropriate orders to give the

parties complete and substantial justice. The jurisdiction of the High

Court, being extra ordinary, is normally exercisable keeping in mind

the principle of equity. One of the ends of the equity is to promote

honesty and fair play. If there be any unfair advantage gained by a

party, before invoking the jurisdiction of the High Court, the court can

take into account the unfair advantage gained and can require the party

to shed the unfair gain before granting relief. The Supreme Court had

held so in Shangrila Food Products Ltd. Vs Life Insurance Corporation

of India (1996) 5 SCC 54. The petitioner had taken advantage of mutual

exchange of accommodation subject to terms and conditions which had

been categorically agreed by him. The petitioner had given an

undertaking on the basis of which his accommodation was given to his

son in law who was much junior in service to him. After taking

advantage of mutual exchange, the petitioner cannot be allowed to

contend that the SO 3 of 2006 is not applicable to him as he is a

member of another service. After agreeing specifically to the

consequence of vacating the exchanged accommodation prior to a

period of two years, the petitioner cannot be allowed to take benefit of

his lapse and in the circumstances the petitioner is not entitled for

exercise of any equitable jurisdiction in his favour.

Even if we accept the petitioners submission that (SO) No.3/2006

per se does not apply to him, it cannot be said that the terms and

conditions of that SO did not get incorporated in the conditional order

passed by the petitioners permitting the exchange. Therefore,

contractually the petitioner was bound by the said terms and

conditions, even if it is accepted that statutorily he was not so bound.

For the foregoing reasons, the order of the Tribunal impugned by

the petitioner does not suffer from any illegality nor the action of the

respondents suffer from any such irregularity or illegality which would

entail interference by this Court in exercise of its jurisdiction under

Article 226 of the Constitution of India. The writ petition in the facts

and circumstances is without any merit and it is therefore, dismissed.

Parties are however, left to bear their own costs.

ANIL KUMAR, J.

NOVEMBER 24, 2009                                     VIPIN SANGHI, J.
Jk/dp