[Cites 6, Cited by 0]
Orissa High Court
State Of Odisha & Others vs Nabakishore Biswal on 29 January, 2026
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A No.2826 of 2024
In the matter of an appeal under Article 4 of Orissa High Court
Order, 1948 read with Clause-10 of the Letters Patent of Patna
High Court and Rule 6 of Chapter-III of the Rules of the High
Court of Orissa from the order dated 05.12.2023 passed by
learned Single Judge in W.P.C(OAC) No.2818 of 2010.
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State of Odisha & others .... Appellants
-versus-
Nabakishore Biswal .... Respondent
Advocates Appeared in this case
For Appellants - Mr.Satya Brata Mohanty,
Addl. Govt. Advocate
For Respondent - M/s.Srikar Ku. Rath, M. Behera,
A. Choudhury & B.R. Swain,
Advocates
---
CORAM :
MR. JUSTICE DIXIT KRISHNA SHRIPAD
MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing & Judgment : 29.01.2026
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PER KRISHNA S. DIXIT, J.
This As a prelude to this judgment, we are quoting what
the Apex Court observed in Union of India v. Onkar Nath Dhar,
2021 INSC 382:
"The right to shelter does not mean right to Government
accommodation. The Government accommodation is meant for
serving officers and officials and not to the retirees as a
benevolence and distribution of largesse...."
To add to the above, squatting on the public property post
retirement or cessation of entitlement has become a national
menace, now a days.
This Intra-Court appeal by the State and its officials seeks to
call in question a learned Single Judge's order dated 05.12.2023
whereby respondent retiree's WPC (OAC) No.2818 of 2010 having
been favoured, the following relief has been accorded to him:
"6.1. It is found that in terms of the said order, Petitioner vacated
the quarter on 07.04.2006. Since it is not disputed that Petitioner
was never issued with any notice directing him to vacate the
quarter till 27.12.2005, placing reliance on the decision of the
Hon'ble Apex Court as cited (supra) so followed by this Court, this
Court is of the view that the Petitioner is not liable to pay penal
rent till 20.01.2006 i.e. the date fixed in notice dated 27.12.2005 for
vacation of the quarter. As per the considered view of this Court,
Petitioner is only liable to pay penal rent for the period from
21.01.2006 to 07.04.2006, when he vacated the quarter. This Court
while holding so, directs the Opp. Party Nos.2 & 4 to release the
withheld gratuity amount of the Petitioner along with interest
@7% per annum as due and admissible by recovering the penal rent
from the Petitioner for the period from 21.01.2006 to 07.04.2006
and the normal rent for the period from 01.03.2002 to 20.01.2006.
The entire exercise shall be undertaken and completed by Opp.
Pasty Nos.2 & 4 within a period of two (2) months from the date of
receipt of this order..."
2. Learned AGA appearing for the State vehemently argues
that retention of official quarters by a retired employee beyond the
permissible limits is a serious matter; such retention causes a great
hardship to the officiating employees who have a legitimate claim
to occupy such quarters soon after posting; the provisions Orissa
Service Code provide for levying penal rents/damages in cases of
overstaying; learned Single Judge having failed to approach the
matter in a right perspective, the impugned order suffers from a
legal infirmity warranting interference at our hands. Learned
counsel appearing for the retired employee vehemently resists the
appeal making submission in justification of the impugned order
and the reasons on which it has been structured. He presses into
service the rulings relied upon by the learned Single Judge.
3. Having heard learned counsel for the parties and having
perused the appeal papers, we are inclined to grant indulgence in
the matter as under and for the following reasons:
3.1. BRIEF FACT MATRIX OF THE CASE
(i) The respondent who was in the occupation of official
quarters during service retired on 28.02.2002 on superannuation.
However, he retained the quarters much beyond his retirement.
The ADM-cum-Estate Officer issued a coercive notice dated
27.12.2005. In petitioner's W.P.(C) No.4505 of 2006, a learned
Single Judge, vide order dated 31.03.2006, granted a period of
seven days for vacating the quarters. Accordingly, he vacated on
07.04.2006.
(ii) The respondent was slapped with a demand notice dated
15.05.2006 levying a penal rent of Rs.1,34,947/- for the
unauthorized occupation of the quarters, i.e., during the period
between 28.02.2002 and 07.04.2006. Since that amount was not
remitted, his gratuity was withheld. Hi filed O.A No.267(C) of
2010. The Orissa Administrative Tribunal, vide order dated
04.03.2010, disposed off the same directing the authorities to take a
decision on respondent's claim for exemption from payment of
penal rent. The jurisdictional authority having not favoured the
claim, he again approached the Tribunal and on its abolition, his
cased was transferred to this Court as WPC (OAC) No.2818 of
2010. The learned Single Judge, by the impugned order, allowed
the same observing that the respondent is liable to pay the penal
rent only for the period between 21.01.2006 and 07.04.2006 coupled
with a direction for releasing the withheld gratuity amount with
interest at the rate of 7% per annum, after giving deduction of
normal rent for the period between 01.03.2002 and 20.01.2006. The
appellants grieve against this order.
3.2. Learned AGA is more than justified in submitting that the
official quarters are meant for occupation by the serving officials
so that the efficacy of discharge of duty is not affected. On the
cessation of employment, be it by retirement, removal, resignation
or otherwise, an employee is not entitled to retain the occupancy
beyond the permissible limits. Rule 107-A of the Code reads as
under:-
"107-A. RETAINING OF THE ALLOTTED RESIDENCE:
(i) Unless otherwise provided in any general or special orders issued by
the State Government, a residence allotted to a Government servant may
be retained on the happening of any of the events specified in Column (2)
of the table below for the period specified in the corresponding entry in
column (3) thereof provided that the residence is required for the bona
fide use of the Government servant or members of his family."
This Rule has a Table and relevant part of it is reproduced for ease
of reference:
Item No. Events Permissible period for retention of the residence
2. Retirement of (a) Government servant One week from the date of retirement
Government entitled to reserved or licence where a substitute has been
servant fee free accommodation. appointed and one month when no
including substitute has been posted.
leave
preparatory (b) Other categories of One month from the date of
to retirement Government servants. retirement when a substitute has
and refused been appointed and two months
leave. when по substitute has been
appointed
Provided that the authority competent to allot quarters may allow the
Government servant to retain the residence up to a period of 4
months, if no administrative inconvenience is caused by this
concession.
NOTE-In the case of leave preparatory to retirement and refused
leave, the confessional period will count from the date from which the
leave commences.
3.3. The above Table specifically provides for retention of the
official quarters by the retiree only for a period of one week from
the date of superannuation when a substitute has been appointed
to the vacancy and one month when no such substitute has been
posted. If the retiree falls in the other category of Government
servants, that retention period is one month when substitute has
been appointed or two months when not appointed. Of course, the
proviso authorizes the competent authority to allow the
occupation for a period not beyond four months, if no
administrative inconvenience is caused by such concession. In the
case at hand, no such permission was ever granted to the
respondent, although he had sought for it. In any case, assuming
that he was entitled to such a concession, that would not justify his
occupation beyond four months of retirement. Therefore, his
occupation becomes unauthorized after the said period and as a
consequence, penal rents become leviable. This aspect of the
matter has not been duly discussed by the learned Single Judge
and thus, the first infirmity is infected in the impugned order.
3.4. It is relevant to state that under the new Rule 107-A of the
Code to which Table is appended, the provisions have to be read
as mandatory because it employes the expression 'a residence
allotted to a Government servant may be retained-'. The word 'may'
has a greater significance when the word 'can' is conspicuously
absent. Court has to keep in mind the salutary object as to why
such a Rule is promulgated, while deciding as to whether the same
is mandatory or directory. At Item No.3 in the Table appended to
this Rule, the following text appears:
Item Events Permissible period for retention of the residence
No.
3. Death of the (a)Government servant Fifteen days following the date
Government entitled to reserved of death when a substitute has
servants. accommodation. been posted and one month
when no substitute has been
posted.
(b) Other categories of One month when a substitute
Government servants. has been posted and two months
when no substitute has been
posted.
Even in the case of death of an employee in harness, his
family members cannot retain the official quarters beyond four
months in any circumstance. Therefore, gauged by any standards,
the occupation of the respondent was unauthorized when he
stayed beyond four months, assuming that his request for
extension was bona fide.
3.5. The vehement submission of learned counsel appearing for
the respondent that the occupation would become unauthorized
only after notice is issued by the Competent Authority, if accepted
would cause the death knell of Rule 107-A of the Code, which
proscribes retention of official quarters by the retiree/transferee
beyond the prescribed period. Such contention cannot be
countenanced without manhandling the provisions of this Rule,
which we have already said are mandatory. Clause II of Rule 107-
A specifically provides that the allotment of quarters shall be
deemed to be cancelled on the expiry of admissible concessional
period. Therefore, there is absolutely no scope for introducing
element of notice as a sine qua non for such an occupation to
become unauthorized. Occupation of official quarters by the public
servants is not a matter of tenancy or ordinary license. It stands on
a different footing, since quarters are built for allotting to the
serving officials so that the efficacy of public service is maintained.
One can fairly imagine the hardship, which serving officials posted
to a particular place, are not allotted the official quarters. That is
the reason why penal rent becomes leviable.
3.6. Learned Single Judge has structured the impugned order on
a wrong premise that in the absence of notice for eviction, the
retention of official quarters does not become unauthorized. He
has not adverted to Clause II of Rule 107-A of the Code. The
rulings, i.e., State of Orissa v. Sadasiv Mohanty, (1997) 3 SCC 211
is not applicable to the case since it does not relate to Rule 107-A in
general and Table appended to the same in particular. This
presumably may be because of absence of Rule 107-A, which is a
new entry to the Rule Book. It hardly needs to be stated that a
decision is an authority for the proposition that is laid down in a
given fact matrix and not for all that which logically follows from
what has been so laid down vide Lord Halsbury in Quinn v.
Letham [1901] AC 495 (HL).
3.7. The vehement contention of learned counsel appearing for
the retiree that his client had applied for permission to retain the
occupation of the official quarters and that no decision having
been taken on that, the occupation does not become unauthorized,
is very difficult to agree with reasons for this are not far to seek:
firstly, what is required is the permission to retain the quarters and
that there is no deemed permission in the extant Rules when no
decision is taken on the request for permission. Secondly, no
permission could have been given for a period beyond what is
prescribed by the Rules. His further contention that respondent
had protection at the hands of Tribunal and later at the hands of
learned Single Judge is only self-serving statement, which is
farfetched. In Onkar Nath Dhar supra it is also observed;
"...the compassion howsoever genuine does not give a
right to a retired person from continuing to occupy a
government accommodation."
Thus, prolonged stay in the government accommodation under
the guise of litigation is unpardonable. The occupant should
realize that a government accommodation is only a qualified
privilege and not a right. In other words, the prolonged stay after
cessation of employment or transfer of an employee is a serious
misconduct, to say the least.
3.8. AS TO LEVY OF EXEMPLARY COSTS.
(i) It is pertinent to recall what the Hon'ble Supreme Court said
in S.D. Bandi v. Divisional Traffic Officer, AIR 2013 SC 2507:
"29....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 entire control this act of disobedience but for the
self-realization among the unauthorized occupants."
A learned Single Judge of this Court in Ramesh Chandra Mohanty
v. State of Orissa (2022) 02 OHC CK 0193 in paragraph 5 has
rightly observed as under:-
".... Petitioner having admittedly been transferred...., cannot
retain the quarters for such a long period in view of the specific
provision under Rule 107A of the Orissa Service Code. Having
done so, the petitioner is liable to pay penal rent as per the extant
rules, guidelines/circulars of the Government..."
In more or less, a matchable fact matrix of this appeal, a learned
Single Judge of High Court Jammu & Kashmir, in Director v.
Avtar Krishan 2023 LiveLaw (JKL) 285 has observed as under:
"The right of the respondent to enjoy the Government
accommodation ceased with his retirement from service and,
therefore, he does not possess any right to keep Government
accommodation with him for all times to come and even after his
retirement, when under Rules he can retain Government
accommodation only for a period of one month after his retirement
and thereafter, the accommodation is deemed to have been
cancelled. Having lost his right to enjoy Government
accommodation with his retirement from service, the respondent
cannot question the Deputy Director's communication to deposit
the rent, which is strictly in conformity with the directions
passed..."
(ii) The conduct of the respondent, in retaining the quarters for
years beyond what is permissible, is culpable. Firstly, he
approached the Tribunal and got a direction to take a call on his
application for exemption from penal rents. How such a right
arises and under which provision of law, are a matter of mystery.
Thereafter, he approaches the Writ Court and vacates the premises
within seven days, i.e, on 07.04.2006, date of retirement being
28.02.2002. There is nothing in the order of the Court in W.P.(C)
No.4505 of 2006 that makes his retention period authorized. We
fail to understand how he could secure a direction for payment of
interest. It is a textbook case of abuse of process of Court and
therefore, eminently merits levy of exemplary costs. When we put
this proposal, learned counsel for the respondent contends that his
client is aged and he is ailing too. There is not even a whisper in
his pleadings nor a piece of paper is produced before us to vouch
such a contention. A loud message should go to the recalcitrant
retirees/transferees that retention of official quarters beyond the
permissible limits is absolutely barred. That would happen only
when the act is made an ill bargain.
In the above circumstances, this appeal succeeds;
impugned order of the learned Single Judge is set at
naught; respondent WPC (OAC) No.2818/2010 is
dismissed with an exemplary cost of Rs.1,00,000/- (Rupees
One Lakh) only to be remitted within ten (10) equalized
monthly installments failing which additional sum of
Rs.200/- per day of delay shall be paid. This entire amount
be remitted to the State Legal Services Authority. The
Authority may institute coercive proceeding for
redemption & recovery.
We place on record our deep appreciation for the able
research & assistance rendered by Law Clerk-cum-Research
Assistant Mr. Mohammed Nihad Sharief.
Registry to send a copy of this judgment by speed post for
needful action in other similar matters, to:
(i) The Principal Secretary,
Department of General Administration & Public
Grievances, Government of Odisha, Bhubaneswar.
(ii) The Member Secretary,
State Legal Services Authority,
Cuttack.
(Dixit Krishna Shripad)
Judge
(Chittaranjan Dash)
Judge
Orissa High Court, Cuttack
The 29th Day of January, 2026/Madhusmita
Location: HIGH COURT OF ORISSA, CUTTACK
