Himachal Pradesh High Court
Karnail Singh vs "2. Since on 8 December, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF DECEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION (ORITINAL APPLICATION) NO. 8035
Between:-
SMT. KRISHNA
r to
OF 2019
SAHOTA
(DECEASED) THROUGH HER
LRS:-
1. KARNAIL SINGH, SON OF LATE
SHRI BHAGAT SINGH, RESIDENT
OF VILLAGE BEHAR JASWAN,
POST OFFICE THATHAL, TEHSIL
AMB, DISTRICT UNA, H.P.
2. TAJINDER SINGH GHUMAN, SON
OF SHRI KARNAIL SINGH,
RESIDENT OF VILLAGE BEHAR
JASWAN, POST OFFICE
THATHAL, TEHSIL AMB,
DISTRICT UNA, H.P.
3 TANVI DAUGHTER OF SHRI
KARNAIL SINGH, RESIDENT OF
VILLAGE BEHAR JASWAN, POST
OFFICE THATHAL, TEHSIL AMB,
DISTRICT UNA, H.P.
...PETITIONERS
(BY SH. MANOHAR LAL
SHARMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL
::: Downloaded on - 31/01/2022 23:24:24 :::CIS
2
SECRETARY (HEALTH & FAMILY
WELFARE) TO THE
GOVERNMENT OF HIAMCHAL
.
PRADESH, SHIMLA-171002.
2. THE DIRECTOR OF HEALTH
SERVICES, HIMACHAL
PRADESH, SHIMLA, H.P.
3. THE CHIEF MEDICAL OFFICER,
UNA, DISTT. UNA, H.P.
...RESPONDENTS
(SH. RAJINDER DOGRA, SENIOR
ADDITIONAL ADVOCATE
GENERAL WITH SH. SHIV PAL
MANHANS, SH. HEMANSHU
MISRA, ADDITIONAL ADVOCATE
GENERALS, SH. BHUPINDER
THAKUR, DEPUTY ADVOCATE
GENERAL.)
This Petition coming on for Admission after Notice on this day,
the Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the
following:-
ORDER
The instant petition was filed before the learned
erstwhile Tribunal for the grant of following substantive reliefs:-
i) That the impugned orders dated 14.11.2014
Annexure A-11, letter dated 08.05.2016, Annexure A-
12 and order dated 23.07.2016, Annexure A-18
issued by the respondent department may very
kindly be quashed and set aside.
ii) The respondent may kindly be directed not to
recover any penal rent from the applicant as he had
occupied the premises in accordance with law and
rules.
2. It may be noted here that during the pendency of the
writ petition, the petitioner died and for continuation of
.
proceedings her legal representatives were ordered to be
brought on record.
2. The deceased petitioner was appointed as a Staf
Nurse in July, 1987 and vide order dated 03.09.2002, she was
allotted quarter No. 4, Type-III, Ist Floor in the premises of
Zonal/Regional Hospital, Una. Thereafter, the deceased petitioner
was promoted as Ward Sister in the month of October, 2008. She
was ordered to be transferred to CHC, Daulatpur Chowk on her
own request vide order dated 27.04.2012 and joined duties on
30.04.2012.
3. According to the deceased petitioner, since her
duties were emergently required at Regional Hospital, Una, she
was deputed/posted at Regional Hospital, Una vide office order
dated 14.05.2012 and was allowed to continue as such.
4. In the interregnum, the deceased petitioner was
directed to appear before respondent No. 3 to clear position
regarding the occupation of the government accommodation at
Regional Hospital Una vide office order dated 21.09.2012, which
according to her was satisfactorily explained and, therefore, no
further action was taken by the respondents. The deceased
petitioner thereafter continued to serve at Regional Hospital, Una
due to emergent services required there but to ensure her
permanent posting there, order dated 21.03.2013 was issued
.
indicating her transfer from CHC, Daulatpur Chowk to Regional
Hospital, Una by respondent No. 2. However, vide office order
dated 22.08.2014, the deceased petitioner was asked to vacate
the premises on the ground that she had been transferred to
CHC Daulatpur Chowk on 27.04.2012.
5.
The deceased petitioner again filed representation,
however, the respondents then issued order of recovery of penal
rent amounting to Rs. 3,65,792/- for not vacating the premises,
which action according to the deceased petitioner is illegal and
arbitrary.
6. The respondents have filed the reply wherein it is
stated that having been transferred from Regional Hospital, Una to
CHC Daulat Chowk in the year, 2012 itself, the deceased petitioner
was liable to vacate the government residential accommodation
allotted to her in accordance with Himachal Pradesh Allotment of
Government Residences (General Pool) Rules, 1994, as amended
from time to time, which entitle to an employee to retain the
government accommodation upto two months from the date of
transfer. It was specifically averred that the deceased petitioner was
aforded ample opportunity to vacate the accommodation but she
failed to do so and, therefore, respondents are left with
no option but to resort to the action for not only seeking vacation
of the premises but also recovery of penal rent.
.
We have heard learned counsel for the parties and
have gone through the record of the case.
7. It needs to be noticed that the deceased petitioner
had earlier approached the erstwhile Tribunal by filing Original
Application No. 1043 of 2015, which was disposed of by the
"Heard.
r to
learned Tribunal on 08.09.2015 by passing the following order:-
2. With the consent of the parties, the original application
is taken up for disposal at this stage.
5. The transferred application has been filed for the
following substantive relief, vide para 7:
"i) That during the pendency of the present
original application in this Hon'ble Tribunal, the
operation of order dated 08.05.2015 ( Annexure
A-1) and order dated 14.11.2014 (Annexure A-2)
may kindly be stayed and respondents may
very kindly be restrained from efecting any
recovery on account of penal rent from the
salary of the applicant in the interest of justice
and fair play."
6. Keeping in view the nature of the relief claimed by the
applicant in the original application, the same is disposed
of with a direction that subject to the applicant making a
detailed representation, supported by documents alonwtih
certified copy of this order to respondent No.1, the
Secretary (Health) to the Government of Himachal
Pradesh, within two weeks from the receipt of copy of this
order, who shall consider and decide the same within
further period of four weeks, after afording an
opportunity of being heard to the applicant, if so desired.
.
It shall be responsibility of the applicant to produce
certified copy of this order before respondent No. 1.
7. The application stands disposed of, so also the pending
application(s), if any."
8. In compliance to the aforesaid directions, the
respondent Department considered the representation and
rejected the same.
9. It is vehemently urged by Mr. M. L. Sharma, learned
counsel for the petitioners that issue in question is squarely
covered by the judgment rendered by the erstwhile Tribunal in
OA No. 1404 of 2015, in case title Usha Rana vs. State of
H.P. & Ors. However, we are not at all in agreement with the
learned counsel for the petitioners firstly for the reasons that the
orders of the Tribunal are not binding precedents before this
Court for obvious reasons. That apart, the reason what weighed
with the Tribunal for allowing the petition therein is contained in
para-2 of the order which reads as under:-
"2. Since, the applicant had been
retained/transferred/deployed at Regional Hospital, Una,
by the orders of 2 nd respondent, vide Annexures A-3 and
A-4. Her transfer to Mandi was set aside by the Hon'ble
High Court of H.P. in March, 2015. Thereafter, the
applicant had been transferred to GNM Training School
(Nursing School), Zonal Hospital, Mandi. She, as such, had
been retained/transferred to Una. She can retain or would
have been allotted the government accommodation by
the respondents. She was not issued any notice for
.
vacation of government accommodation and the
respondents were making deductions of house rent from
her salary. Therefore, the respondent treated the applicant
to be an authorised occupant of the said accommodation
by deducting house rent from her salary."
10. Evidently, this is not the fact situation obtaining in
the present case. The deceased petitioner was duly put to notice
and, in fact, directed to vacate the premises vide order dated
21.09.2012, but the deceased petitioner chose not to comply
with the same. Thereafter, two notices dated 22.08.2014 and
08.09.2014 were served upon the deceased petitioner for the
purpose of vacation of the residence but she again chose to
ignore the same. It was then that the respondents were
constrained to issue office order dated 14.11.2014 imposing the
penal rent and asking her to vacate the premises, that too, by
passing a well reasoned order, which reads as under:-
"OFFICE OF THE CHIEF MEDICAL OFFICER UNA DISTRICT
UNA
No. HFW-Una (Accommodation)/2014- Dated:
"Office Order"
Whereas Smt. Krishna Sahota, Ward Sister, Rural Hospital,
Una was transferred to CHC Daulatpur vide Director of
Health Services, Himachal Pradesh, Shimla.
Whereas Smt. Krishna Sahota, Ward Sister was relieved
from her duty by the Senior Medical Officer In-charge, RH
Una on account of her transfers from RH Una to CHC
Daulatpur on 30-04-2012.
Whereas incumbent after her transfer can retain Govt,
accommodation only up to two month only is per Govt.
orders. Therefore two notices were served to the
.
incumbent vide this office memo No HFW
Una(Accommodation)/2014-9048 dated 22/8/2014 & even
No 9665 dated 8-9-2014 to vacate the residence as per
norms fixed by the Govt. of Himachal Pradesh.
Whereas the incumbent has not vacated the Govt.
accommodation in compliance notice as mentioned
above. to this office
Therefore it is decided in the House Allotment committee
meeting held on 13/08/2014 that panel rent may be
imposed to the incumbent as per Govt. orders w.e.f. 30-
06-2012. As the incumbent has Qtr. No.4, Type-III, Hospital
Colony, near Regional Hospital, Una accommodation with
her so panel rent has calculated w.e.f. 30-06-2012 is as
under:
Total area covered by the incumbent=725.762 feet
square.
Rate per square feet = Rs.18 per square feet.
Rent per month =725.762x18=13063.71/- Say Rs.
13064/- PM
Amount for the month of July, 2012 to Oct., 2014 =
13064x 28-365,792/-.
Gross amount 365,792/-
Further it is added that a sum of Rs. 13064/- per month
w.e.f. 1-11-2011 to date of vacation may also be deleted
from her salary.
Chief Medical Officer,
Una, District Una.
Endst. No. as above 12378-80 Dated: 14.11.2014
1. Copy of Smt. Krishna Sahota, Ward Sister, RH Una, for
information and necessary action.
2. Copy to the Assistant Controller (F&A) of this office for
information please.
3. Copy to Account Branch of this office, for information
and necessary action.
Sd/-
Chief Medical Officer,
Una, District Una."
11. Despite this notice, the deceased petitioner failed to
vacate the premises, constraining the respondents to pass the
.
following order on 08.05.2015:-
"OFFICE OF THE CHIEF MEDICAL OFFICER UNA DISTRICT
UNA
NoHFW-Una(Accommodation)/2014-5702Dated 08.05.2015
To
Mrs Krishna Sahota, Ward Sister,
Regional Hospital, Una.
Subject: Non vacation of Government accommodation,
penal rent thereof.
Memo:
In continuation of this office earlier correspondence
regarding the subject cited above events/ circumstances
competing undersigned to impose panel rent on you.
Events are given chronological order.
1. That you were allotted Govt. accommodation quarter
No 4 Type III as per your request during your posting as
Ward Sister at Regional Hospital, Una on the prescribed
license fee by the Government of Himachal Pradesh from
time to time.
2. That you were transferred from RH Una to CHC
Daulatpur and relieved from your duties in the F.N. of 30-
4-2012. 2.
3. As you are aware that Govt, employee can retain
Government accommodation on transfer for two month
i.e. 1-5-2012 to 30-6-2012. Otherwise panel rent will be
applicable on you as per Government orders.
4. But you willfully did not vacate Government
accommodation allotted to you.
5. You were served notice by the undersigned from time to
time.
6. But despite that you did not vacate the Government
accommodation occupied by you illegally, Which not only
against rules but amount to misconduct on your part
being a Government employee.
7. You were given personal hearing undersigned and you
were counseled to vacate accommodation occupied
.
illegally by you.
8. You were also given opportunity to vacate the
Government accommodation even after notice and
imposing the panel rent.
So to ensure the compliance of Government rules for non-
vacating the Government accommodation penal [email protected]
Rs.13064/- PM (as assessed by PWD authorities) w.e.f. 1-7-
2012 to date of vacation, which will be deducted from
your salary for the month of April, 2015 onwards.
Chief Medical Officer,
Una, District Una
Endst. No. as above Dated:
1. Copy to the Assistant Controller (F&A) of this office, for
information.
2. Copy to the Senior Medical Officer Incharge, District
Una, for information and with the direction to deduct the
amount under intimation to this office, for record.
3. Copy to bill clerk of this office, for information and with
the direction to deduct the rent from the salary of
incumbent from the salary April, 2015 onwards.
Sd/-
Chief Medical Officer,
Una, District Una"
12. The practice of retaining official accommodation by
persons in official capacity even after transfer has to be frowned
upon. The unauthorized occupants must recollect that the rights
and duties are correlative as the rights of one person entail the
duties of another person. Similarly, the duty of one person
entails the rights of another person. The unauthorized occupants
must appreciate that their act of overstaying in the premises
directly infringes the right of another. No law or directions can
entirely control this act of disobedience but for self-realisation
among the unauthorised occupants.
.
13. This was so held by the Hon'ble Supreme Court in
S.D. Bandi vs. Divisional Traffic Office, KSRTC & others
(2013) 12 SCC 631, wherein it was observed as under:
"34. It is unfortunate that the employees, officers,
representatives of people and other high dignitaries
continue to stay in the residential accommodation
provided by the Government of India though they
are no longer entitled to such accommodation. Many
of such persons continue to occupy residential
accommodation commensurate with the office(s)
held by them earlier and which are beyond their
present entitlement. The unauthorized occupants
must recollect that rights and duties are correlative
as the rights of one person entail the duties of
another person similarly the duty of one person
entails the rights of another person. Observing this,
the unauthorized occupants must appreciate that
their act of overstaying in the premise directly
infringes the right of another. No law or directions
can entirely control this act of disobedience but for
the self realization among the unauthorized
occupants. The matter is disposed of with the above
terms and no order is required in I.As for
impleadment and intervention."
14. Earlier to that in Wazir Chand vs. Union of India
& others (2001) 6 SCC 596, the Hon'ble Supreme Court was
considering a case wherein an employee of the Railways
continued to occupy the government quarters. The Hon'ble
Supreme Court in its order upheld the principle that unauthorized
occupants have to pay penal rents and went to the extent of
.
holding that the Government was entitled to even withhold
gratuity amount, payable to the employee, towards the penal
rent. The order of the Hon'ble Supreme Court reads as under:
"These appeals are directed against the orders of the
Central Administrative Tribunal rejecting the claim of
the appellant, who happens to be a retired Railway
servant. Admittedly, the appellant even after
superannuation, continued to occupy the Government
quarter, though being placed under hard
circumstances. For such continuance, the Government,
in accordance with Rules, has charged penal rent from
the retired Government servant, and after adjusting
the dues of the Government, the balance amount of
the gratuity, which was payable, has been ofered to
be paid, as noted in the impugned order of the
Tribunal. The appellants' main contention is that in
view of the Full Bench decision of the Tribunal against
which the Union of India had approached this Court
and the Special Leave Application was dismissed as
withdrawn, it was bounden duty of the Union of India
not to withhold any gratuity amount, and therefore, the
appellant would be entitled to the said gratuity amount
on the date of retirement, and that not having been
paid, he is also entitled to interest thereon. We are
unable to accept this prayer of the appellant in the
facts and circumstances of the present case. The
appellant having unauthorisedly occupied the
Government quarter, was liable to pay the penal rent
in accordance with Rules, and therefore, there is no
illegality in those dues being adjusted against the
death-cum-retirement dues of the appellant. We,
therefore, see no illegality in the impugned order which
requires our interference. The appeals stand
.
dismissed."
15. At this stage, we may note that ratio laid down in
S.D. Bandi's case (supra) has thereafter been reiterated by the
Hon'ble Supreme Court in Lok Prahari vs. State of U.P. and
others (2016) 8 SCC 389.
16. The deceased petitioner could not place any fact or
law which could support her case for overstaying in the official
accommodation without any authority of law. The deceased
petitioner was bound to follow the rule of law or else it would
amount to gross indiscipline. It has to be remembered that the
public servants in such like matters are not requested by the
Government, but are directed and the orders of the Government
are in the nature of a command for the government servants.
17. In view of the aforesaid discussion, we find no merit
in this petition and the same is accordingly dismissed, leaving
the parties to bear their own costs. Pending application, if any
also stands disposed of.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
8th December, 2021 Judge
(sanjeev)
