Madhya Pradesh High Court
Fateh Singh Parmar vs The State Of Madhya Pradesh on 28 May, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
(1)
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 28th OF MAY, 2024
WRIT APPEAL No. 709 of 2024
BETWEEN:-
FATEH SINGH PARMAR S/O BABU SINGH,
AGED ABOUT 68 YEARS, OCCUPATION:
RETIRED SUB INSPECTOR R/O VASHNAV
VIHAR COLONY BEHIND INDRALOK
GARDEN GUDA GUDI KA NAKA, KAMPOO
GWALIOR (M.P.) (MADHYA PRADESH)
.....APPELLANT
(SHRI D.P. SINGH-ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY,
1. DEPARTMENT OF HOME, MANTRALAYA
GOVT. OF MP. VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
THE DIRECTOR GENERAL OF POLICE
2. POLICE HEADQUARTERS BHOPAL
(MADHYA PRADESH)
THE SUPERINTENDENT OF POLICE
3. POLICE HEADQUARTERS GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS
( SHRI AJAY KUMAR NIRANKARI - PUBLIC PROSECUTOR)
Signature Not Verified
Signed by: SUNEEL DUBEY
Signing time: 5/31/2024
12:09:15 PM
(2)
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This petition coming on for admission this day, Justice
Vivek Rusia passed the following:
ORDER
Appellant /Petitioner has filed this Writ Appeal being
aggrieved by the order dated 31/08/2023 passed by the Writ Court
whereby the recovery of Rs.1,45,200/- (Rs. One Lakh Forty Five
Thousand Two Hundred Only) in the head of penal rent has been
upheld.
2. Facts of the case in short are that the petitioner
retired from the post of Sub-inspector in the Police Department on
31/12/2015. While in service he was allotted a Govt. Quarter in
the premises of Kotwali by his service vide order dated
27/11/1981. After retirement he did not vacate the quarter;
therefore, his retiral dues were withheld for want of submission of
NOC. After vacating the quarter on 28/02/2018, the District
Pension Officer issued a PPO for the release of death-cum
retirement gratuity. From the retiral dues, an amount of
Rs.1,58,600/-(Rupees One Lakh Fifty Eight Thousand Six
Hundred Only) was recovered on account of excess payment.
3. The petitioner was served with a demand notice
dated 21/05/2018 for recovery of penal rent from the period of
1/3/2016 to 28/02/2018 (24 Months) in total Rs.1,45,200/-
(Rupees One Lakh Forty Five Thousand Two Hundred Only).
Being aggrieved by the order of recovery of Rs.1,58,600/- and the
penal rent of Rs.1,45,200/-, the petitioner filed the writ petition
before this Court. Vide order dated 31/08/2023, the Writ Court
has set aside the recovery of Rs.1,58,600/- by relying upon the
judgment passed by Apex Court in the case of State of Punjab &
Others Vs. Rafiq Masih (White Washer) & Others reported in
2015 (4) SCC 334 but declined to quash the recovery of penal
rent as he occupied the quarter after retirement without
permission from the higher authorities. Hence, this Writ Appeal
has been filed before this Court.
4. Learned counsel for appellant/petitioner submits that
the learned Writ Court has not considered the provisions of Rule
66 of Madhya Pradesh Civil Services (Pension) Rules, 1976 (For
brevity 'the 1976 Rules'). As per proviso to Sub-rule (4) of Rule
66, the Government dues which remain unreleased in respect of
house rent and water charges, if the claim for which is received
after the period of 12 months from the date of retirement of
Government servant shall not be recoverable from the retired
Government servant.
5. Learned counsel for appellant/petitioner further
submits that since the respondent withheld the entire retiral dues
payable to the petitioner including the pension and gratuity
therefore he could not make arrangements for a personal house
and thus, in the absence of any house to shift after retirement, he
did not vacate the govt. accommodation. Therefore, such recovery
of penal rent is unjustified.
6. Learned Govt. Advocate submits that every govt. the
employee is liable to vacate the quarter/govt. accommodation
immediately after retirement, unless the competent authority
permits him to retain the quarter for a certain period. If he
remains in an unauthorized occupation after a period of 6 months,
then the penal rent shall be recovered under the Shashkiya Awash
Avantan Niyam, 2000. Admittedly the appellant/petitioner was in
occupation of a quarter after retirement; therefore, the recovery is
justified and the Writ Court has not committed any error while
dismissing the Writ Petition to that extent.
7. We have heard the learned counsel for the parties at
length and perused the record of the case
8. For ready reference and convenience, Rule 66 of the
Rules of 1976 is reproduced below:-
66. Furnishing of surety by retiring Government
servant.-
(1) (a) If any of the Government dues
(other than those referred to in Rule 65 remain
unrealized and unassessed for any reasons, the
retiring Government servant may be asked to
furnish in Form 8 a surety of a suitable
permanent Government servant, holding a
pensionable post.
(b) If the surety furnished by him is
found acceptable the grant of his pension and
gratuity shall not be delayed.
(2) (a) If the retiring Government servant
is unable or unwilling to furnish a surety, a
suitable cash deposit may be taken from him, or
such portion of gratuity payable to him as may
be considered sufficient may be held over till
the outstanding dues are assessed and adjusted.
(b) The cash deposit to be taken or the
amount of gratuity to be withheld shall not
exceed the estimated amount of the outstanding
dues plus twenty-five per cent thereof.
(c). Where it is not possible to
estimate the approximate amount recoverable
from the retiring Government servant the
amount of deposit to be taken or the portion of
gratuity to be withheld shall be limited to ten
per cent of the amount of gratuity or one
thousand rupees, whichever is less.
(3) (a) Efforts shall be made to assess and
adjust the recoverable Government dues within
a period not exceeding six months from the date
of retirement of the Government servant and, if
no claim is made on Government account
against the Government servant within such a
period it shall be presumed that no Government
claim excluding a claim of house rent and water
charges is outstanding against him.
(b) The Government dues as assessed
shall be adjusted against the cash deposit or the
amount withheld from the gratuity and the
balance, if any, shall be released to the retired
Government servant after the expiry of the
period referred to in clause (a).
(c) Where a pensioner has furnished a
surety, the surety shall be released after the
expiry of the period referred to in clause (a)
provided the dues assessed up to that time have
been recovered.
(4) The Government dues which remain
unrealised within the period referred to in clause
(a) of sub-rule (3) and such other dues, the claim
for which is received after that period, shall be
recoverable from the retired Government
servant through legal procedure :
Provided that in respect of house rent and
water charges, the amount, if any, the claim for
which is received after the period of 12 months
from the date of retirement of the Government
servant shall not be recoverable from the retired
Government servant.
Note. - Where Public Works Department and
Public Health Engineering Department have not
found it possible within 1 ½ months from the
date of demand by Head of Office which shall
be made immediately after the date of the
retirement of the Government servant, whether
any amounts are due from a retired Government
servant, or have not issued no dues certificate,
the Head of Office in addition to the action
under this rule should call upon the retired
Government servant concerned to furnish a
declaration in Form 25. He should be further
required to sign an undertaking in Form 26. On
receipt of the aforesaid declaration and
undertaking, Head of Office may write to the
Audit Officer to release the pension/gratuity. If
the demands for any amount due against such
retired Government servant are not made within
12 months of his retirement the officers
concerned in the Public Works Department and
Public Health Engineering Department as the
case may be, would be held personally
responsible for any loss incurred by the
Government.
9. As per Sub-rule (1) of Rule 66, if the govt. dues
remain unreleased and unassessed for any reason, the retiring
government servant may be asked to furnish a surety in Form 8
and if the surety is furnished and accepted, the grant of his
pension and gratuity shall not be withheld and if the retiring
government servant is unable and unwilling to furnish the surety,
he may deposit the cash amount or such portion of gratuity can be
withheld to be adjusted for recovery of such outstanding dues.
10. As per Sub-rule (3) of Rule 66, efforts shall be made
to assess and adjust the recoverable dues within the period not
exceeding 6 months from the date of retirement of the
government servant. It further says that if no claim is made
against the govt. servant within such period it shall be presumed
that no government claim including the claim of house rent or
water charges is outstanding.
11. Learned counsel for appellant/petitioner has placed
heavy reliance on Sub-rule 4 of Rule 66 which says that the govt
dues which remain unrealized within a period referred to in
Clause (a) of sub-rule (3) and such other dues, the claim for
which is received after that period, shall be recoverable from the
retired Government servant thorough legal procedure. As per the
proviso to sub-rule (4) of Rule 66, the house rent and the water
charges for which the claim is received after the period of 12
months from the date of retirement of government service shall
not be recoverable from the retired government servant. As per
the note, if the Public Works Department (PWD) or Public Health
Engineering Department (PHE) have not found it possible within
1½ month of the date of demand by the head office in respect of
any amount due from the govt servant, the government servant
shall be called upon to furnish a declaration in Form 25 or Form
26, as the case may be.
12. In the present case, neither Form No.8 nor Form
No.25 & 26 were taken from the appellant/petitioner by the
Government as well as by the Public Works Department (PWD).
The Government has simply withheld the gratuity amount and
other pensionary benefits for want of NOC in respect of vacation
of the quarter.
13. The aforesaid provision of Rule 66 applies to a case
where the govt. servant vacates the quarter immediately after
retirement or remains in possession with due permission from the
Competent Authority. The sub-rule (4) of Rule 66 deals with the
recovery of normal rent, house rent and water charges. But where
the issue is about the recovery of penal rent, then the provision of
Shashkiya Awash Avantan Niyam, 2000 will apply. The petitioner
did not vacate the quarter because his retiral dues were not paid to
him and according to respondents same were not paid the retiral
dues because the petitioner did not vacate the quarter and submit
the NOC. However, the petitioner vacated the quarter and
thereafter, the gratuity amount was paid to him. Admittedly, the
appellant/ petitioner continued in the possession of quarter/govt.
accommodation without permission of the competent authority;
therefore, he can not claim any equity from this Court, and he is
not liable to pay the penal rent for the extended period. Therefore,
no interference is warranted. Unless the Government employees/
officers submit a 'No Objection Certificate' from all the offices to
the pension officer his/ her pensionary benefits are not liable to be
released. The appellant cannot be permitted to take advantage of
his own wrong and default. He was responsible for the delay in
vacating the accommodation allotted to him by virtue of his
services. Immediately after retirement, he was liable to vacate the
accommodation to claim the benefits from the department. In case
of a delay in payment, he would be entitled to get the interest on it
but by retaining the quarter he cannot pursue his claim for retiral
benefits. The impugned action of the department is fully justified
hence no interference is called for.
14. Accordingly, the instant Writ Appeal stands
dismissed.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
(Dubey)
