Delhi High Court

Awadesh Kumar Prajapati vs Govt. Of Nct Of Delhi on 28 August, 2014

Author: Rajiv Sahai Endlaw

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 28th August, 2014

+                              LPA No.64/2014

       AWADESH KUMAR PRAJAPATI               ..... Appellant
                  Through: Mr. Bipin Jha & Mr. Nitin Jain, Advs.

                                  Versus

    GOVT. OF NCT OF DELHI                   ..... Respondent
                  Through: Mr. Aditya Madan, Adv.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra-court appeal impugns the order dated 21.11.2013 of the

learned Single Judge of this Court of dismissal of W.P.(C) No.1598/2013

preferred by the appellant.

2. The appellant, who claims to be 100% visually impaired is working as a

teacher of Hindi language and posted at New Police Lines, GTB Nagar,

Kingsway Camp, Delhi. The appellant by virtue of his employment has been

allotted a residential flat at Timarpur. The appellant, claiming that the

residential accommodation allotted to him is at a distance of 4/5 kms from the

school in which the appellant is posted and that the appellant suffers

inconvenience and risk owing to his disability in travelling the said distance

and further claiming that his wife is also physically disabled to the extent of

60% and is a student of a school, also located in the GTB area, applied for

change of residential accommodation to Model Town and upon such request for

change being rejected, filed the writ petition from which this appeal arises for a

direction to the respondent to transfer the allotment of residential

accommodation to the appellant from at Timarpur to at Model Town, Delhi.

3. The respondent filed a counter affidavit (in the writ petition) inter alia

pleading that the residential flat aforesaid at Timapur was allotted to the

appellant not as per his seniority / priority but on ad-hoc and emergent basis

under the discretionary quota of the Director (Allotment), taking into

consideration the difficulties being faced by the appellant. It was pleaded that

the request for change of flat from Timarpur to Model Town could not be

considered only on the basis of seniority / priority of the appellant particularly

when persons having seniority / priority much higher than the appellant were

still awaiting allotment; it was yet further pleaded that the appellant was not

entitled to any relief because the residential flat at Timarpur allotted to the

appellant has been sublet by the appellant and proceedings for cancellation of

the allotment of the said flat were also underway.

4. The learned Single Judge dismissed the writ petition, finding/ observing/

holding, i) that the Court in exercise of jurisdiction under Article 226 cannot

give a direction which would result in contravention of the Government of

Delhi Allotment of Government Residence (General Pool) Rules, 1977; ii) that

there is no good reason for the appellant not to wait in the queue for change of

residential accommodation allotted to him; iii) that the appellant cannot link

allotment of residence to him to the place of his posting as a matter of right; if

the appellant is transferred to another school, he cannot on this ground seek

change of accommodation unless he is entitled thereto as per the Rules; iv) that

the residential accommodation at Timarpur already allotted to the appellant

cannot be said to be far from the place of posting of the appellant; v) that while

the distance between Timarpur and the place of posting of the appellant is

stated to be 4/5 kms, the distance between Model Town (where the appellant is

seeking accommodation) and the place of posting of the appellant is stated to be

1½ kms and there is not much difference between the two; and, vi) that

according to the respondent, no accommodation at Model Town is available for

being allotted to the appellant.

5. Aggrieved from the aforesaid, this appeal was filed, notice whereof was

issued. We have heard the counsels for the parties.

6. We have at the outset enquired the status of the proceedings stated to

have been initiated for cancellation of the residential accommodation allotted to

the appellant at Timarpur on the ground of subletting, being of the opinion that

if the said allotment itself has been cancelled and the appellant has been found

to be guilty of subletting, he would not be entitled to any relief in these

proceedings as well. While the counsel for the appellant denies that there was

any subletting and states that the appellant had merely temporarily allowed one

of his friends to reside in the Timarpur accommodation, the counsel for the

respondent states that the said proceedings were dropped because the

subsequent inspection of the Timarpur premises revealed that the appellant had

removed the person to whom the residential accommodation at Timarpur had

earlier been sublet and the appellant was found to have himself occupied the

said accommodation.

7. We have next enquired, whether any residential accommodation at

Model Town is available for allotment to the appellant. While the counsel for

the respondent states that there is no accommodation available, the counsel for

the appellant has handed over the information dated 30.05.2014, made available

to him in response to an RTI query and as per which, there is accommodation

available for allotment at Model Town.

8. The counsel for the respondent has also handed over a copy of the Office

Memorandum dated 31.03.2014 issued by the Ministry of Personnel, Public

Grievances and Pensions, Department of Personnel and Training, Government

of India laying down the guidelines for providing certain facilities in respect of

persons with disabilities who are already employed in Government, for efficient

performance of their duties and has contended that the allotment of

accommodation to the appellant is in accordance therewith.

9. A perusal of the record discloses:

(a) that the appellant had earlier filed W.P.(C) No.1952/2013 with the

grievance that the respondent Govt. of NCT of Delhi, qua

allotment of pool accommodation, was clubbing the cases under

the Persons with Disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995 with the General Medical

category cases for special allotment and with the further grievance

that the Rule of special allotment under the General Medical

category, of the allotment being of one Type below entitlement

accommodation, was being applied to allotment to persons with

disability also; the said writ petition was disposed of by a Division

Bench of this Court vide order dated 13.05.2013, directing:


                 (i)     that there should be a separate clear reservation of 3% for

                         persons       with   disability,   qua   allotment       of    pool

                         accommodation;

                 (ii)    that the entitlement of persons with disability to residential

accommodation cannot be clubbed with the discretionary

allotment on medical ground;

(iii) that there could be no question of allotment of one category

below entitlement accommodation to persons with

disability;

and with a direction to the respondent to amend the rules to bring

them in conformity with the findings of the Court;

(b) that the appellant was allotted the residential accommodation at

Timarpur vide letter dated 21.05.2012;

(c) that the appellant has applied for change of Timarpur

accommodation for residential accommodation at Model Town, on

29.01.2013;

(d) that the request of the appellant for change of accommodation was

rejected vide letter dated 14.03.2013 on the ground that the

appellant had not completed six months from the date of allotment

of residential accommodation at Timarpur inasmuch as the

appellant had taken possession of the residential accommodation at

Timarpur on 15.09.2012;

(e) that it was the case of the respondent before the learned Single

Judge that it has only eight residential flats at Model Town;

(f) that it was further the case of the respondent before the learned

Single Judge that as per the Government of Delhi Allotment of

Government Residence (General Pool) Rules, 1977, the request for

change of flat has to be considered on the basis of date of priority

and along with the other applicants and that the appellant will get

the change as and when his seniority is covered; and,

(g) that the documents handed over by the appellant to show that

accommodation at Model Town is indeed available do not

categorically show as to how much residential accommodation at

Model Town is available for allotment to the appellant inasmuch

as it appears that the accommodation is department wise.

10. On consideration of the aforesaid material, we are unable to know

whether the respondent has complied with the direction contained in the order

dated 13.05.2013 in W.P.(C) No.1952/2013, of reserving 3% of the residential

accommodation available, for persons with disability. The counter affidavit of

the respondent filed before the learned Single Judge is quiet in this respect and

the counsel for the respondent also is unable to inform us in this regard.

Needless to state that if the respondent till date has not complied with the said

direction with which it was to comply within three months, the respondent at

least now needs to amend the rules qua allotment of residential accommodation

to bring the same in conformity with the directions issued by this Court in order

dated 13.05.2013. The learned Single Judge has not dealt with the said

contention of the appellant.

11. As far as the reasoning given by the learned Single Judge, of there being

hardly any difference between the distance of 1½ kms of the residential

accommodation at Model Town sought by the appellant from the place of

posting of the appellant at New Police Lines, GTB Nagar, Kingsway Camp,

Delhi and the distance of 4/5 kms from the residential accommodation

presently allotted to the appellant at Timarpur to GTB Nagar is concerned,

though the said difference may not be much for a person with all faculties

functioning but the test to be applied is of a person with 100% visual

impairment. The learned Single Judge does not appear to have seen the matter

from the said perspective. For a person with 100% visual impairment, the

difference between 1½ kms. and 4/5 kms. is indeed substantial and worth

remedying. The way visually impaired people travel/work, is different than the

way sighted people travel. Most training for the visually impaired traveller

focuses on learning routes to get from point A to B, which is a skill utilised in

orientation and mobility training. To follow a route, visually impaired travellers

break their journey into shorter stages and orient themselves within the journey

a greater number of times and relating it to the contextual information about

points of interest along the route. When sighted people look at a map, they see

the whole map i.e. the total; however, the visually impaired take only pieces

from a total. If a visually impaired person walks by a bakery and the door is not

open and he does not smell it, he does not know it is there. It cannot also be

forgotten that there is a great amount of pressure on the visually impaired to be

independent on their journey and seeking aid from another human is the last

resort. We find that providing ways of gathering contextual information about

points of interest along a route is a subject of research for improving the living

conditions of visually impaired particularly in urban orientation. The Supreme

Court also recently in Deaf Employees Welfare Association v. Union of India

(2014) 3 SCC 173 noticed the unprecedented increase in the commutation time

between the residence and place of work and which affects the work

environment in the office adversely as the employee spends much of their

energy in commuting and observed that in case of persons with disability the

situation is more grave.

12. Similarly, though the learned Single Judge is right in reasoning that the

appellant can be granted change of accommodation only on maturity of his date

of priority but again, ignoring that the date of priority of the appellant, a person

with disability, cannot be at par with the date of priority of a person with all

faculties functioning and especially when this Court had vide order dated

13.05.2013 in the petition earlier filed by the appellant already directed

reservation of 3% of the pool accommodation for persons with disability. The

date of priority of a person with disability has to be as per the said 3% category.

The respondent appears to have not made any such reservation and appears to

be treating a person with disability at par with a person with all human faculties

functioning and which, not only is not permissible in law but is also contrary to

the directions already issued by this Court in the order dated 13.05.2013. The

request of the appellant, a person with disability, will have to be considered at

par with the need / requirement of persons similarly situated as the appellant.

We find that the Guidelines dated 31.03.2014 supra of the Ministry of

Personnel, Public Grievances and Pensions also direct the Directorate of Estates

to give preference to persons with disabilities for providing them accessible

accommodation near their place of posting and for exemption of such persons

from the rotational transfer policy.

13. For the aforesaid reasons, we are unable to agree with the reasoning

given by the learned Single Judge and dispose of this appeal with the following

directions:

(a) the respondent, if has not already complied with the directions

contained in the order dated 13.05.2013 in W.P.(C) No.1952/2013

earlier preferred by the appellant, to immediately comply with the

same within one month hereof;

(b) the case of the appellant for allotment of residential

accommodation at Model Town be considered under the category

of 'Persons with Disability' and for whom reservation of 3% has

already been directed to be made;

(c) if the appellant, on aforesaid consideration, is found entitled to

residential accommodation at Model Town, the appellant be

immediately allotted the said accommodation within two months

herefrom;

(d) if upon aforesaid consideration, the appellant is not found eligible

for change of accommodation, the appellant be informed of the

same with reasons, again within two months herefrom;

(e) if no residential accommodation at Model Town is presently

available inspite of the appellant being found entitled thereto, the

appellant be allotted the said accommodation forthwith on the

same becoming available.