Himachal Pradesh High Court

Decided On: 14.10.2024 vs State Of H.P. And Others on 14 October, 2024

Author: Ajay Mohan Goel

Bench: Ajay Mohan Goel

                                                                                    2024:HHC:9944
       IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                       CWP No.          11367 of 2024
                                                       Decided on: 14.10.2024
Bhupender Singh                                                        ... Petitioner

                            Versus

State of H.P. and others                                                        ... Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
_____________________________________________________
For the petitioner      :     Mr. B.N. Mehta, Advocate.

For the respondents                  :        Mr. Pushpender Jaswal, Additional
                                              Advocate General.
Ajay Mohan Goel, Judge                        (Oral)

By way of this writ petition, the petitioner has primarily

prayed for the following reliefs:-

"(1). That the petitioners in the facts and circumstances prays

that the Civil Writ Petition may very kindly be allowed and

this Hon'ble Court may very kindly be pleased to grant the

following relief (s) in favor of the petitioner.

(a). That the writ in the nature of mandamus may kindly be

issued, and Annexure P-9 and P-10 dated 02.07.2024 and

16.09.2024 may kindly be set-aside and quashed and

further the respondents may be directed to charge Four times

license fee and excess amount may be ordered to be

refunded to the petitioner. And further may also be directed

Whether reporters of the local papers may be allowed to see the judgment?

2024:HHC:9944 the accommodation in question so allotted may not be

disturbed till the period of 06.01.2025 as the family of the

petitioner is residing there with lawful entitlement."

2. Brief facts necessary for the adjudication of this writ

petition are that the petitioner, who happens to be an employee of

Public Works Department of the Government of Himachal Pradesh,

is presently serving the National Highways & Infrastructure

Development Corporation Ltd. on deputation in terms of Annexure

P-1. The petitioner was allotted Government Accommodation in his

capacity as an employee of the Public Works Department of the

respondent-Department. After being sent on deputation, he was

called upon to vacate the said accommodation but when he did not

vacate the premises, proceedings were initiated against him under

the provisions of the Himachal Pradesh Public Premises and Land

(Eviction and Rent Recovery) Act, 1971. In terms of order dated

02.07.2024 (Annexure P-9), the Collector-cum-Director of Estates,

Himachal Pradesh, Shimla, ordered the eviction of the petitioner

from the premises in issue, i.e., Set No. 2, Type IV, Barnes Court,

Shimla-02, by holding that the record clearly demonstrated and

proved beyond any doubt that the petitioner was in

unauthorized occupation of the public premises w.e.f. 06.03.2024

and he had no right to retain the Government accommodation. The

2024:HHC:9944 appeal filed by the petitioner against this order also met the same

fate. The appeal was dismissed by the Appellate Authority vide order

dated 16.09.2024 (Annexure P-11), hence, this petition.

3. Learned Counsel for the petitioner has argued that the

orders passed by the Collector as well as Appellate Authority are not

sustainable in the eyes of law as both the authorities erred in not

appreciating that in terms of the notification dated 01.01.2021

(Annexure P-8), the petitioner was entitled to retain the

accommodation for a period of one year after he was sent on

deputation and otherwise also, the petitioner is entitled to retain the

accommodation for the reason that he is transferred to a non-family

station. It is on these two grounds that learned Counsel has

submitted that the orders passed by the Collector as well as

Appellate Authority are not sustainable in law. No other point was

urged.

4. I have heard learned Counsel for the petitioner as well

as learned Additional Advocate General and also carefully gone

through the pleadings as well as documents appended therewith as

also the orders passed by the authorities.

5. It is not in dispute that the petitioner presently is

serving on deputation with the National Highways and

Infrastructure Development Corporation Ltd. The deputation per se

2024:HHC:9944 is not a transfer but a person is deputed to another department with

his consent. The petitioner in fact is presently on "foreign service

within India". The petitioner was sent on deputation vide Annexure

P-1, dated 20.02.2024. The Court has been informed that the term

of deputation is one year. In terms of notification dated 01.01.2021,

the amendment that has been incorporated in Sub Rule 2 of Rule 10

of the Himachal Pradesh Allotment of Government Residences

(General Pool) Rules, 1994, provides that an employee who proceeds

on Foreign Service in India is entitled to retain the government

accommodation for a period of two months. An employee is entitled

to retain the government accommodation, if sent on deputation, for a

maximum period of one year but provided this deputation is outside

India. Here, the petitioner has not been sent on deputation outside

India but has gone on deputation to another employer within India.

He presently is serving with his current employer, i.e. National

Highways and Infrastructure Development Corporation Ltd. in the

border areas of Jammu and Kashmir.

6. Reliance placed on the amended Rule 16 of the 1994

Rules (supra) is also completely misplaced.

7. Rule 16 as it stands amended reads as under:-

"16. Transfer of non-family station--

If an officer/official is transferred to any Scheduled Area of

2024:HHC:9944 Himachal Pradesh or Dodra Kawar of District Shimla and

the residence allotted to him under these rules is required

by the family for bonafide use, he may be allowed on merit

of each case to retain the residence on payment of normal

license fee."

8. In terms of this Rule, an officer/official transferred to

any Scheduled Area of Himachal Pradesh or Dodra Kawar of District

Shimla, can be allowed to retain the residence allotted to him if

required by the family for bonafide use on merit of each case on

payment of normal license fee. A plain reading of this Rule

demonstrates that for the purpose of applicability of this Rule, it is

an employee of the Government of Himachal Pradesh who ought to

be transferred to any Scheduled Area of Himachal Pradesh or Dodra

Kawar of District Shimla and said transfer but natural has to be by

the parent department of the Government of Himachal Pradesh.

Herein, the petitioner has not been transferred to any Scheduled

area of the Himachal Pradesh or Dodra Kawar of District Shimla but

he is serving on deputation with National Highways and

Infrastructure Development Corporation Ltd. Simply because the

petitioner is serving in the border areas of the Union Territory of

Jammu and Kashmir, Rule 16 of the Policy referred to above is not

attracted.

2024:HHC:9944

9. In a case of transfer, unless the transfer is on the

request of the employee, the same is effectuated by the employer per

se. However, in the case of deputation, an employee goes on

deputation voluntarily and as the petitioner with open eyes has gone

on deputation to a foreign employer within India and by virtue of

this, he happens to be serving in border areas of Jammu and

Kashmir, he is not entitled for protection of the 2004 Rules, as is

being claimed by the petitioner, save and except for a period of two

months.

10. In this backdrop, when one peruses the order passed by

the Collector and the Appellate Authority, one does not find any

infirmity therein. A perusal of the same demonstrates that after the

petitioner went on deputation, numerous opportunities were granted

to him to vacate the premises once his possession thereof became

unauthorized but he failed to do so and this necessitated initiation

of proceedings against him under the provisions of the Himachal

Pradesh Public Premises and Land (Eviction and Rent Recovery) Act,

1971. As the petitioner has not been able to demonstrate that his

possession of the Public Premises is not unauthorised, that is to say

that as he is legally entitled to retain the premises, the order of

eviction passed by the Collector as affirmed by the Appellate

Authority calls for no interference.

2024:HHC:9944 Accordingly, in view of above observations, as this Court

does not find any merit in the present petition, the same is

dismissed. Pending miscellaneous application(s), if any also stand

disposed of accordingly.

(Ajay Mohan Goel) Judge October 14, 2024 (narender)

BHUPE DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=04d8bcd7412dcb18b7b081df02fb3b 89ecc4a0c8f8a66ab97285dc56e62d41fe,

NDER PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=2ccc91b5122501da0ce3 678b0e2b7bd5fa9b09937769da5501e1f4e7 ad448bc5, CN=BHUPENDER KUMAR Reason: I am approving this document with

KUMAR my legally binding signature Location: