Delhi High Court
Chatar Sain vs Uoi & Ors. on 20 May, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: May 20, 2013
+ W.P.(C) 5426/2011
CHATAR SAIN ..... Petitioner
Represented by: Mr.Parveen Kumar Nagpal, Advocate
for Mr.G.D.Bhandari, Advocate
versus
UOI & ORS. ..... Respondents
Represented by: Mr.Ankur Chhibber, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO
PRADEEP NANDRAJOG, J.
1. It is settled law that in a territory occupied by a legislation or an
executive instruction, equity cannot be used to nullify the territory occupied.
2. Petitioner Chatar Sain was holding substantive post of a Mail
Man in the Railway Mail Service (RMS) and was posted at Haridwar. Being
entitled to a Government accommodation, a quarter was allotted to him
under a license at Haridwar. Being promoted on June 04, 2007, there being
no vacancy available at Haridwar to the post to which Chatar Sain was
promoted, he was transferred to Saharanpur and was required to vacate the
quarter allotted at Haridwar within two months and for which period his
liability was to pay the normal license fee. On account of the education
requirement of his children, he could continue to occupy the quarter for
another 6 months but upon paying twice the normal license fee. In other
words, Chatar Sain was entitled as per the applicable rules framed by the
Department of Posts to occupy the quarter for 8 months, further retention
was to be treated as a case of unauthorized occupant; inviting damages to be
paid.
3. Retaining the quarter where his family resided, Chatar Sain
started discharging duties at Saharanpur and simultaneously made a request
to be posted back at Haridwar as and when a vacancy arose. None arising
and 8 months period elapsing, an order was issued by the Competent
Authority on September 16, 2008 directing Chatar Sain to pay damages in
sum of `4,906/- per month; but wrongly made the same applicable from the
month of June 2007, ignoring that till the month of January 2008, Chatar
Sain would be entitled to retain the quarter by paying normal license fee for
the first two months and double the amount for the next 6 months.
4. The order in question was not preceded by any show cause
notice thereby depriving Chatar Sain a right to be heard.
5. A vacancy arising at Haridwar in the promotional post on
January 14, 2009, Chatar Sain was transferred to Haridwar and from said
date continued to retain the quarter allotted to him, and sought regularization
of the quarter from a back date, a request which was declined because
people senior to him, with respect to the date they joined duties at Haridwar,
were awaiting allotment of a quarter to them.
6. Thus, while disbursing salary to Chatar Sain, penal rent in sum
of `4,906/- per month continued to be deducted compelling Chatar Sain to
file OA No.1697/2011 praying that the order directing penal rent to be
deducted be quashed and to regularize the quarter allotted in his name with
further direction that the respondents should forthwith stop deducting penal
rent while disbursing salary paid to him.
7. Vide impugned order dated May 27, 2011 the Tribunal has
dismissed OA No.1697/2011.
8. Pleadings of Chatar Sain before the Tribunal would evidence
that he was relying upon a policy decision taken by the Postal Department to
the effect that if an employee who has been allotted a quarter is transferred
out and then transferred back to the original place within one year of being
transferred out, he would be entitled to retain the quarter allotted.
9. As noted above, on promotion, Chatar Sain was transferred out
of Haridwar to Saharanpur on June 04, 2007 and was transferred back to
Haridwar on January 14, 2009 i.e. after 1 year and 6 months of being
transferred out from Haridwar.
10. Therefore, two issues arise for consideration. Firstly whether
Chatar Sain is liable to pay damages for the period beyond 8 months of his
being transferred to Saharanpur; and secondly, whether Chatar Sain is
entitled to the regularization of the quarter which was allotted to him at
Haridwar when he was posted there as a Mail Man.
11. Since allotment of the quarter is governed by Rules framed by
the Postal Department in exercise of the executive power, and the vires of
the Rules not being questioned, the issue has to be decided as per the Rules.
12. As noted above, the Rules permit a transferred employee to
retain the accommodation allotted for a period of two months upon paying
the normal license fee, and the same is ex-facie fair and reasonable. It is
also just. Two months' time is sufficient period for a transferred employee
to vacate his abode and find another abode. Further, recognizing that
children may be studying in a school or a college and a sudden transfer as a
result of a promotion may cause an obstruction in the education of the
children who would be expected to complete the academic year in the
institute where they were admitted, the policy permits the employee to retain
the accommodation allotted for another 6 months but upon paying double
the license fee each month. The policy is just and equitable. It takes into
account the educational interest of the children.
13. Further, upon being re-transferred back to the place of original
posting, but within one year, the policy entitles the Government servant to
retain the accommodation in preference to the claims of other eligible and
senior employees. The reason for the policy is that interest of the transferred
and re-transferred employee needs to be balanced vis-a-vis the interest of the
others; and the equitable balance struck is by limiting the interest of the
transferred employee to a period of one year of being re-transferred back.
The balancing act by the department is fair and equitable.
14. It has to be kept in mind that for the period in question which is
post January 01, 2006, as a result of the recommendations of the 6th Central
Pay Commission being accepted, the House Rent Allowance payable has
been liberalized to 30% of the basic pay in Group 'A' cities and probably in
the others as well, but assuming not to be the same i.e. 30% of the basic pay,
at least 10% of the basic pay. In other words, a fair recompense for housing
if required to be taken on rent by a Government servant has been provided
for.
15. Since claim by Chatar Sain if allowed would result in the
applicable Rules being violated, it would not be permissible for us, taking a
sympathetic approach, to grant relief to Chatar Sain.
16. On the subject to equity, we need to highlight that sympathy
and equity are not to be confused. A claim in equity would arise on a
judicially recognized principle of equity; not to be confused with judicial
sympathy.
17. But, while calculating the damages, right of Chatar Sain to be
heard cannot be denied.
18. It is trite that a post decisional hearing may also suffice in an
appropriate case, although the strive must be towards a pre decisional
hearing. But in the instant case, much waters having flown since the year
2009, we are of the opinion that while rejecting the claim of Chatar Sain to
be permitted to retain the quarter as a matter of right, the writ petition needs
to be disposed of with a direction to the petitioner that with respect to the
period post 8 months of Chatar Sain being promoted and transferred from
Haridwar to Saharanpur his liability to pay damages, with respect to the
quantum thereof be adjudicated after granting a hearing to Chatar Sain. As
regards the first 8 months' period, demand of damages is quashed by us
observing that for said period, for 2 months Chatar Sain would be liable to
pay the normal license fee and for further 6 months his liability would be to
pay twice the license fee.
19. No costs.
CM Nos.11059-60/2011
Since the writ petition stands disposed of, instant applications
stand disposed of as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(V.KAMESWAR RAO)
JUDGE
MAY20, 2013
mamta
