Lt.Col S.K.Mishra & Ors. vs Union Of India & Ors.
2016 Latest Caselaw 1844 Del

$~16
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 8308/2015 & C.M. 17532/2015

       LT. COL S.K. MISHRA & ORS.              ..... Petitioners
                       Through: Mr. S.S. Pandey & Mr. Ajeet Pandey,
                                Advocates

                           versus

       UNION OF INDIA & ORS.                        ..... Respondents
                     Through:           Mr. Ashwani Bhardwaj, Advocate

       CORAM:
       HON'BLE MS. JUSTICE HIMA KOHLI
       HON'BLE MR. JUSTICE SUNIL GAUR

                      ORDER

% 08.03.2016

1. The present petition has been filed by seven petitioners praying inter

alia for issuance of directions to the respondent No.3- Station Commander,

Station Head Quarter, Delhi Cantt, New Delhi to allot them the entitled scale

of accommodation and further, quash the order whereby the respondents

have refused to permit them retention of the entitled scale of

accommodation. The impugned order, passed by the respondent in the case

of the petitioner No.1, has been enclosed with the petition and forms part of

Annexure P-1 (colly), wherein the addressee was informed as below:-

"2. It is observed that on being SOS of Army HQ w.e.f. 13 th Jul

2014 (AN), you are proceeding on Study Leave for the period 14 th Jul 2014 to 31 May 2016 and will remain attached with Stn. HQ Delhi Cantt, during Study Leave.

3. As per MOD Accn rules, officers proceeding on study leave for a period of more than six months and attached to Non-AFHQ Unit, are required to seek allotment of accn from the unit to which attached and vacate the MoD Pool of Accn within 10 days of being SOS of AFHQ/ISOs. For retention of accn beyond 10 days of being SOS of AFHQ/ISOs, the officer is required to furnish NAC from the unit to which attached , within 02 months from the date of SOS, the officer is required to compulsorily shift to alternate hired accn, for which he is required to contact this office well before completion of 02 months from the date of SOs."

2. The grievance of the petitioners is that all of them were granted study

leave by the respondents and they had submitted representations to the

respondent No.3 for allotment of their entitled scale of accommodation while

on study leave in terms of the Special Army Order (SAO 10/8/86), which

entitles them to be treated at par with regular officers on duty, however, the

respondents had turned down their representation, thus, compelling them to

approach the Court.

3. At the outset, learned counsel for the petitioners submits that the

tenure of the study leave of most of the petitioners shall expire between May

to July, 2016. To be more specific, the study leave of the petitioners No.1, 6

and 7 shall expire on 31st May, 2016, that of the petitioners No.2 and 5 shall

expire on 30th June, 2016 and that of the petitioners No. 3 and 4 shall expire

on 31st July, 2016.

4. Learned counsel for the petitioners submits that when the petition was

listed on 31st August, 2015, an interim order was passed, whereunder the

respondents were restrained from taking coercive action to dispossess the

petitioners from the quarters under their occupation and the said order has

been continuing to operate in their favour. He submits that the tenure of the

study leave is at the fag end and the children of most of the petitioners are

school going and presently sitting for their year end examinations. It is

urged that it will cause great hardship to the petitioners and their family

members if they are directed to vacate the subject premises right away and

shift to alternative hired accommodation.

5. It is pertinent to note that in the counter affidavit filed by the

respondents, there is no averment made with regard to the offer for

alternative hired accommodation made to the petitioners herein. It has only

been averred in the counter affidavit that the petitioners, who were granted

study leave, were occupying CAO Pool accommodation and as per the

existing rules were liable to vacate the same within two months from the date

of commencing the study leave.

6. Learned counsel for the respondents asserts that the petitioners were

offered allotment of accommodation by the CAO, which they have not

accepted. The said submission has, however, been categorically denied by

the petitioners in paragraph No.5 of their rejoinder filed in response to the

counter affidavit of the respondents.

7. Be that as it may, the respondents have failed to clarify in their counter

affidavit as to which policy would govern the petitioners. The petitioners'

stand is that they are governed by paragraph No.5 of the order dated 30 th

January, 2015, issued by the respondent No.5,which clarifies that the

instructions contained in the said document will be implemented for study

leave commencing w.e.f 1st June, 2015 and status quo shall be maintained for

all the earlier cases.

8. The said submission has, however, been vehemently denied by learned

counsel for the respondents, who states that the instructions in the order

dated 30th January, 2015, would not have any application to the petitioners

herein.

9. Having regard to the fact that tenure of the study leave of most of the

petitioners shall expire between May, 2016 to 31st July, 2016, and given the

peculiar facts and circumstances of the present case as also keeping in mind

that if they are displaced at this stage, undue hardship is likely to be caused

to the petitioners and their family members, particularly the school going

children who are sitting for their exams in March/April 2016, it is deemed

appropriate to permit the petitioners to retain their present accommodations

till the expiry of their study leave. Immediately, thereafter, the petitioners

shall be governed by the policy with regard to the allotment of

accommodation, as may be applicable to them.

10. The present petition and the application are disposed of.

HIMA KOHLI, J

SUNIL GAUR, J

MARCH 08, 2016 r