S. K. Chaudhary v. State of Rajasthan — 1987 DIGILAW 874 (RAJ)

MILAP CHANDRA, J.—This writ petition has been filed under Article 226, Constitution of India for quashing the order dated July 31, 1987 (Annexure 1), allotting the three Government houses, newly constructed in the campus of Medical College, Jodhpur to the respondents No. 3 to 5 and for directing the respondent No. 2 to allot one of these houses to the petitioner. The facts of the case may be summarised thus. 2. The petitioner joined Medical College, Jodhpur as Senior Demonstrator in the Department of Pathology in December, 1975. Subsequently, he was promoted to the post of Lecturer and is continuing as such. The Government constructed four houses of Type-Ill in the campus of Medical College, Jodhpur. The petitioner, respondents Nos. 3 to 5 and other doctors applied for allotment of these houses. The respondent No. 3 Dr. (Mrs.) Kanta Motwani joined Medical College, Jodhpur in 1981 and the respondent No. 4 Dr. Rajeev Khullar and respondent No. 5 Dr. Sanjeev Sanghvi in the year 1986. The Principal and Controller, Medical College, Jodhpur (respondent No. 2) was the Allotting Authority of these houses. He allotted them to the respondents Nos. 3 to 5 and Dr. Dasora (not a party in the writ) by his order dated July 31, 1987(Annexure l) which has been challenged in this writ petition. 3. The petitioners case is that the allotment order (Annexure 1) is against the provisions of Rules 3(d), 3(e) and 7(b) of the Rajasthan Civil Services(Allot-ment of Residential Accommodation) Rules (hereinafter to be called as the Rules), it is the duty of the Allotting Authority to allot the Government houses strictly on the basis of priority, it is determined according to date of joining at a particular place and he was entitled for allotment of one of the said houses, as he joined Medical College, Jodhpur in the year 1975, while the respondents No. 3 to 5 joined in the years 1981 and 1986 and they also did not apply for the allotment on the prescribed forms. 4. 4. In reply to the show-cause notice, the respondent No. 2 filed his reply stating that the petition is not maintainable, cases of all the applicants were duly considered, after the constructions of the said Government houses, a committee was constituted, after the receipt of the report of the Committee and looking to the emergency services, two houses were earmarked for the teaching staff of the College working in the Mahatma Gandhi Hospital and New Teaching Hospital and they were allotted to the respondents Nos. 4 and 5. It has further been stated that out of the remaining two houses, one has been allotted to Dr. L. S. Dasora, Senior Demonstrator (which has not been challenged in this petition) and the other to respondent No. 3, their applications were received prior to the application of the petitioner, the State of Rajasthan has issued guidelines from time to time clarifying that the priority should be fixed from the date of the intimation by the Government servant, if he does not apply for the allotment immediately after joining the place and the allotment of houses has been made in accordance with the rules and instructions. 5. The respondents No. 3, 4 and 5 have also filed their replies, seriously opposing the petition. 6. It has been contended by the learned counsel for the petitioner that under Rule 7(e), the Allotting Authority was required to make allotment strictly in accordance with the waiting list required to be maintained by him under Rule 7(b) in the order of the date of joining the duty at Jodhpur, the petitioner joined the Medical College in the year 1975 and the respondents No. 3 to 5 joined in the years 1981 and 1986, the petitioner had priority and was, therefore, entitled for the allotment of one of the Government houses. He further contended that in fact no Government house out of the four newly constructed houses has been earmarked otherwise the order (Annexure 1) would have its reference. He lastly contended that the proviso below rule 7(c) (iii) is applicable to the Government houses situated at Jaipur and not to houses situated at other places of Rajasthan. 7. He further contended that in fact no Government house out of the four newly constructed houses has been earmarked otherwise the order (Annexure 1) would have its reference. He lastly contended that the proviso below rule 7(c) (iii) is applicable to the Government houses situated at Jaipur and not to houses situated at other places of Rajasthan. 7. In reply, it has been contended by the learned Additional Government Advocate that the respondents No. 3 to 5 applied for the allotment of the Government houses prior to the petitioner, the rule regarding the order of the priority from the date of joining the duty at the place is applicable only when the applicant moves an application in the prescribed form immediately after joining the place and not otherwise, the petitioner applied for allotment for the first time in April, 1987, the rules never contemplated that he should get priority from 1975 and according to proviso given below rule 7 (c) (iii) priority is to be given from the date of the receipt of the application in such cases. He also contended that the provisions regarding the allotment of Government residential accommodation strictly in accordance with the waiting list is subject to various exceptions and conditions and are not mandatory in nature. He further contended that it is clear from the order of the Allotting Authority made on the report of the Committee that two Government houses were earmarked and remaining were left open for general allotment and it was not necessary to mention the fact of earmarking in the allotment order (Annexure 1). 8. The learned counsel for the respondents Nos. 3 to 5 duly supported the learned Additional Government Advocate. 9. Admittedly, the respondent No. 2, Principal and Controller, Medical College, Jodhpur was the Allotting Authority of the aforesaid four Government houses, newly constructed in the campus of the Medical College, vide rule 10 (vi). He was also empowered under Rule 4 of the Rules to earmarks these houses. It runs as under:— "4. The allotting authority will classify the various residences in the various categories as per rules in force and can change the class or earmark the same for any specific officer or purpose. He was also empowered under Rule 4 of the Rules to earmarks these houses. It runs as under:— "4. The allotting authority will classify the various residences in the various categories as per rules in force and can change the class or earmark the same for any specific officer or purpose. The existing classifications and earmarking of the houses in Jaipur City are given in Schedule A." During the arguments, the learned Additional Government Advocate placed before us the relevant file of the office of the respondent No. 2 and invited our attention towards the order of the respondent No. 2 passed on the report of the Committee earmarking two houses for the teaching staff of the college working in the Mahatma Gandhi Hospital and new teaching hospital. There is no force in the contention of the learned counsel that two houses could not be earmarked in such a fashion. ScheduleAof these rules shows earmarking of certain Bungalows/Quarters of Jaipur City in a similar manner. Item Nos. 30 to 34 of A Class, Item Nos. 12 and 13 of B Class and Item No. 1 of H Class have similarly been earmarked for Medical Department Officers and Doctors of Female Hospital. Even after the earmarking of Bungalows/Quarters, allotment is required under rule 5 of the Rules. This rule does not require that an allotment order relating to an ear-marked house should mention the fact of earmarking. It is clearly stated in the reply of the respondent No. 2 that the Government houses allotted to the respondents No. 4 and 5 were first earmarked and, thereafter, they were allotted to them. 10. The next question for consideration in this case is whether the allotment of the Government house made in favour of respondent No. 5, Dr. Kanta Motwani is not in accordance with the rules and the petitioner is entitled for its allotment. The petitioners case is that he has priority since the year of his joining as Demonstrator in the Medical College, Jodhpur, i. e. 1975 as provided in rule 7(b) of the Rules. It runs as follows:— "(b) The allotting Authority will maintain a classwise waiting list in register in the form given in Schedule C in respect of all officers for whom the power of allotment vests in him, in the order of their priority date i. e. the date of joining their duty at that place." 11. It runs as follows:— "(b) The allotting Authority will maintain a classwise waiting list in register in the form given in Schedule C in respect of all officers for whom the power of allotment vests in him, in the order of their priority date i. e. the date of joining their duty at that place." 11. There is no substance in this case of the petitioner. Rule 6 of the Rules requires that every officer who desires to have an allotment made under the Rules SHALL submit an application in the prescribed form to the allotting authority concerned IMMEDIATELY ON ARRIVAL as that place. It is clearly stated in para No. 4 of the petition that the petitioner applied for allotment of accommodation on April 9, 1987 and subsequently re-applied on June 6, 1987. It has no where been stated in it that the petitioner submitted an application for allotment immediately on his arrival at Jodhpur in the year 1975. Rule 6 is immediately followed by Rule 7, requiring the allotting authority to maintain a waiting list in the order of their priority date, i. e. the date of joining their duty at that place. The proviso given below rule 7 (c) (iii) runs as under:— "If any one, however, fails to put in his intimation or application as the case may be within the specified time then he would be entitled from the date of the receipt of his intimation." This proviso leaves no doubt that the petitioner is entitled for the priority from the date of the receipt of his first application, i. e., April 9, 1987 and not from the date of his joining Medical College in the year 1975. It is clear from para No. 5 of the petition that the respondents had applied earlier. 12. There is no force in the contention of the learned counsel for the petitioner that this proviso is applicable for the government houses situated at Jaipur only. If clauses (i), (ii) and (iii) of sub-rule (c) of Rule 7 would have been applicable for Government houses located at Jaipur only, then its clause (i) and the said proviso would not have been in general terms and there would not have been specific reference of Jaipur in clauses (ii) and (iii). 13. If clauses (i), (ii) and (iii) of sub-rule (c) of Rule 7 would have been applicable for Government houses located at Jaipur only, then its clause (i) and the said proviso would not have been in general terms and there would not have been specific reference of Jaipur in clauses (ii) and (iii). 13. If the contention of the petitioner is allowed to prevail, an inconsistency in the two clauses of sub-rule (b) of Rule 7, namely, "in the order of their priority date." and i. e., "the date of joining their duty at that place appears" occurs. Priority date of an officer has been defined in rule 3(d) of the Rules as under:- "(d) Priority date of an Officer in relation to a class of residence, means the earliest date from which he has been continuously entitled to the allotment of a residence in that or a higher class, and has also been continuously holding a qualifying appointment except for period of leave." It is not disputed that the petitioner is holding a qualifying appointment since the year 1975. The question is about the date from which the petitioner has been continuously entitled to the allotment of a residence. It is clear from the provisions of rules 6 and 7 that an application is a condition precedent for the allotment. There arises no question of a entry in the register of waiting list (Schedule C) and priority when there is no application for the allotment. Thus the earliest date from which the petitioner has been continuously entitled to the allotment is April 9, 1987. According to the first clause of rule 7(b) "in the order of their priority date the entry in the waiting list should be w. e. f. from 9.4 1987. Acconding to its second clause, i. e., the date of joining the duty at the place", it should be with effect from the year, 1975. This inconsistency disappears when the application for allotment of a Government house is made immediately after taking over the charge at a place. Harmonious constructions of these two apparently conflicting phrases also leads to the conclusion that the priority from the date of the joining duty can be given only when the application is immediately made and not otherwise. 14. This inconsistency disappears when the application for allotment of a Government house is made immediately after taking over the charge at a place. Harmonious constructions of these two apparently conflicting phrases also leads to the conclusion that the priority from the date of the joining duty can be given only when the application is immediately made and not otherwise. 14. If the proviso given below rule 7(c) (iii) is not applicable for the Government houses situated at places other than Jaipur, there remains a gap in the Rules. It is well settled law that when the provisions of Act and Rules are silent, the executive in structions of the Government may fill up the gap. Reference of B.N. Nagarajan v. State of Mysore(2), Sant Ram v State of Rajasthan(l) and Rajendra Narain v. State of Bihar(3), may be made here. It has been stated in para No. 6 of the reply of the respondent No. 2 that the State of Raj. (respondent No. I) has issued guidelines from time to time and has clarified that the priority should be fixed from the date of the intimation by the Government servant, if he does not apply for allotment at the earliest after joining at a place. Rule 26 of the Rules empowers the Government to issue such instructions. Government Circular No. F 4(6) GA/A/69 dated December 6, 1969 runs as under:- "I am directed to say that Rule 7 (Hi) of the Rajasthan Civil Services (Allotment of Residential Accommodation) Rules may kindly be seen in the matter. It is further stated that if a Government servant joins the place of posting or he becomes entitled for high category of accommodation and apply for allotment within a month his priority should be fixed from the date of joining or he becomes entitled for higher category as the case may be. If a Government servant does not apply within a month from the date of joining or from date of entitlement of higher category of house within a month then his priority should be fixed from the date of intimation by the Government servant." 15. This rule of priority is based upon principles of natural justice. It is clear from rule 7(e) of the Rules itself that it is subject to several exceptions and conditions. Rules 9(i), 9(ii), 10(i), 10(ii), 10(iii) and ll(iii) contain some of the exceptions. This rule of priority is based upon principles of natural justice. It is clear from rule 7(e) of the Rules itself that it is subject to several exceptions and conditions. Rules 9(i), 9(ii), 10(i), 10(ii), 10(iii) and ll(iii) contain some of the exceptions. Houses are constructed in the compound of an institution primary in its interest. The interest of an occupant-officer is subservient. The head of the institution is the best judge to know who can better serve the interest of the institution. For this reason, the Rules have made him allotting authority in place of the Collector and Commissioner. As such the rule of priority cannot be held to be mandatory in nature. It is simply directory. For this reason also, the allotment order made in favour of the respondent No. 3 by the head of the institution cannot be quashed in the exercise of the extraordinary jurisdiction when it has not at all been averred in the petition that the interest of the Medical College, Jodhpur would have better been served by the allotment in favour of the petitioner. 16. In the result, the petition is dismissed with costs.