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Himachal Pradesh High Court · body

2000 DIGILAW 230 (HP)

SHASHI VIKRANT v. STATE OF HP

2000-08-31

AVTAR SINGH, NARINDER SINGH THAKUR

body2000
JUDGMENT Honble Mr. Attar Singh, Vice Chairman : - 1. This application has been filed by the two petitioners whereby respondent No. 2 has rejected the application of the applicant (Annexure-w A/4) for allotment of Govt. Accommodation on the ground that she is not eligible under the House Allotment Rules. Briefly the case of the petitioned as set out in the O.A, is that she joined as a Litho-Artist in Himachal Pradesh Government Printing Press on August 7, 1989 in the pay scale of Rs. 1500-2640/-. The husband of the applicant remained posted in Shimla from May 1990 to June 1996 as Assistant Engineer and Executive Engineer. In June 1996 he was transferred as Executive Engineer to I&PH Division Keylong in Lahaul & Spiti. The father of the applicant Shri B.D. Pathak, retired as a Registrar from H.P. PWD on 31.3.1997. In Feb. 1997 she shifted to Govt. Accommodation allotted to her father. She submitted an application dated 15.2.1997 Annexure-A1, to the Controller, Himachal Pradesh Printing & Stationery Department, Shimla-5, whereby she requested that House Rent Allowance being paid to her may not be paid to her with effect from February 1997 on wards as she had started staying in the Govt. Accommodation allotted to her father. The father of the applicant retired on 31.3.1997 on attaining the age of superannuation. She submitted the application on proper form on 18.4.1997 (Annexure-A/2) whereby she claimed allotment of Government Accommodation in occupation of her retired father. 2. The basic pay of the applicant w.e.f. 1.8.1996 is Rs. 1800/-. As per Himachal Pradesh Allotment of Government Residences (Genera) Rules, 1994 (hereinafter referred to as "Allotment Rules), the type-III residence is admissible to an employee with monthly emoluments less than Rs. 3000/-but not less than Rs. 1800/-. The accommodation in occupation of father of applicant is a Type-III accommodation and as such, applicant is eligible for allotment of the said accommodation, on the retirement of her father. The applicant made a representation in the month of July 1997 (Annexure-A5) whereby she drew the attention of respondent No. 2 to the Judgment of the Honble Supreme Court reported in 1996(2) SCS 380 Savita Sam Vedi Vs. Union of India and claimed that when married son is eligible for allotment of Government accommodation on the retirement of his father/mother, the married daughter shall also be eligible for such allotment. Union of India and claimed that when married son is eligible for allotment of Government accommodation on the retirement of his father/mother, the married daughter shall also be eligible for such allotment. She requested to reconsider her case in the light of judgment supra. Till date, she has not received any response. 3. The father of the applicant was entitled to retain the accommodation in question upto 31st July, 1997 (4 months) after his retirement. Thereafter, he was allowed to retain the accommodation by granting him extension upto August 31, 1997 in the first instance and thereafter upto October 31,1997 in the second instance. Thus, the father of the applicant has been in occupation of the accommodation in question after his retirement on double the normal rent i.e. Rs. 175/- per month. Since the application of the applicant for allotment of accommodation in question has been rejected and on her representation to re-consider her case in the light of law declared by the Honble Supreme Court, no decision has been conveyed to her till the filing of this O.A., she has to approach this Tribunal. 4. Rule 8 of Allotment Rules deals with adhoc allotment on out of turn basis. Under sub-rule 2, the said rule, in the event of death or retirement of a Government servant, House Allotment can be made to the wife/husband or son or un-married daughter, provided that the retired or deceased Government servant was in occupation of Government accommodation at the time of retirement or death. The said rule stipulates that such allotment is not to be made in a category higher than a category to which the ward of the Government servant concerned, is entitled. 5. The applicant submits that rule 8(2) of Allotment Rules suffers from the vice of gender discrimination in as much as under the said rule a son is entitled to allotment of such accommodation irrespective of the fact whether he is married or not, whereas the choice has been restricted in case of a daughter and only un-married daughter has been made eligible for allotment, under the rules in question. The petitioners submit that hostile discrimination is being meted out to the category of married daughters under the impugned Rules and it is in violation of Articles 14 & 15 of the Constitution of India. The petitioners submit that hostile discrimination is being meted out to the category of married daughters under the impugned Rules and it is in violation of Articles 14 & 15 of the Constitution of India. Unless the eligibility of married daughter is placed at par with an un-married daughter, the impugned rule is liable to be struck down as offending the fundamental right of the applicant. Article 15 of the Constitution specifically mandates the state not to discriminate against any citizen on the grounds of sex. It is submitted that there is no rational and reasonable basis for making distinction between a married and un-married daughter as compared to married and un-married sons. The classification between married and un-married daughter is violative of the guarantee enshrined in Articles 14 & 15 of the Constitution of India, as the impugned classification is not based on any rational grounds and it also does not have any nexus with the object sought to be achieved. The petitioner further submits that the retiring father can stay with his daughter, whether married or un-married and there is no presumption in law that this object can only be achieved, if the accommodation is allotted either to married or un-married son or to an un-married daughter. Thus, the impugned rule also violates article 16 of the Constitution of India in as much as the same deprives the married daughter, who is an employee of the State, of a fair treatment in the allotment of Government accommodation. The impugned rule is clearly un onstitutional and the offending word "un-married" preceding the word "daughter" in rule 8(20) of the Allotment Rules is liable to be struck down as violative of Articles 14,15 and 16 of the Constitution. The rejection of her claim vide order dated June 27, 1997 (Annexure-A4) is also liable to be struck-down. The respondents are liable to be directed to allot the accommodation i.e. Set No. 3, Spring-Field, Chhota Shimla to the applicant No. 1 under rule 8(3) of the Allotment Rules after removing the offending portion of the said rule. 6. The mother of the applicant is suffering from an eye-ailment and is under treatment for the last over one year. The respondents are liable to be directed to allot the accommodation i.e. Set No. 3, Spring-Field, Chhota Shimla to the applicant No. 1 under rule 8(3) of the Allotment Rules after removing the offending portion of the said rule. 6. The mother of the applicant is suffering from an eye-ailment and is under treatment for the last over one year. Since the father of the applicant No. 1 i.e. applicant No. 2 has since retired from service, the parents of applicant No. 1 can stay with her in the accommodation, which was in the occupation of her father prior to his retirement. The applicants have sought for the following reliefs: "i. That the words "un-married" preceding the word "daughter" in rule 8(2) of the Allotment Rules at Annexure-A3 may kindly be struck down as violative of Articles I4, 15, & 16 of the Constitution of India; ii. that the impugned letter dated June 27, 1997 (Annexure-A/4) may also be quashed and set aside and the respondents may be directed to allot Set No. 3, Spring Field, Chhota Shimla, to the applicant No. 1, from the date her father retired from service on 31st March, 1997. iii. that the respondents may be directed to refund the excess amount of rent recovered from her father (applicant No. 2) i.e. the difference between the double the normal rent and normal rent which would be charged from applicant No. 1, with interest at market rate." 7. Reply has been filed on behalf of respondents by the Deputy Secretary (GAD) to the Govt. of Himachal Pradesh. In reply it is stated that the application of the applicant is not tenable as the applicant No. 1 being a married daughter is not eligible for out-of-turn allotment of Govt. accommodation under rule 8(2) of HP. Allotment Rules (General Pool) Rules 1994, as only un-married daughters are covered for out-of-turn allotment under these Rules. It is also stated that the judgment of Honble Supreme Court is not applicable in the instant case as die Railway Authorities had given permission to the daughter of that railway employee to share the accommodation with her father being a railway employee well before the retirement of her father. The above said judgment is a judgment in personam and not a judgment in rem. The above said judgment is a judgment in personam and not a judgment in rem. The applicant No. 1 has earlier drawn H.R.A. upto 2/97 and has on her own accord requested her employer to stop the H.R.A. with the motive and intention to take advantage of her fathers retirement on 31.3.1997 and claim allotment of Government accommodation which is not permissible under the rules. The above facts clearly show that it was a manipulation by the applicants to get the Govt. accommodation. The respondents also stated that rule 17(1) specifically provides that no officer/official can share the Govt. accommodation without the prior permission of the respondents whereas the applicant shared the said accommodation without the prior permission of the respondent in February, 1997 and as such it does not confer any right for allotment under any provision of the allotment rules ibid. The respondents also state that she is very junior as the employees who joined in the year 1965-66 are yet waiting for allotment on seniority basis for type-III accommodation. She has also no inherent right for out-of-turn allotment under rule 8(2) ibid, asunder these rules only the wife/husband, as the case maybe or son or un-married daughter are considered for out-of-turn allotment after the retirement of Government servant, it is also stated that the petitioner cannot take shelter under the above mentioned judgment of the Honble Apex Court as the railway authorities has their own allotment rules whereas the State Govt. is allotting Govt. accommodation strictly in accordance with the above said allotment rules, as such she has no legal claim. The respondents also state that the rules have been framed under F.R. 45 and they are not violative of articles 14 and 15 of the Constitution as there is no discrimination offender. The basis for making the distinction between the married and un-married daughter as specified in the Rules that the un-married daughter may not be thrown out from the Govt. accommodation after the retirement of her father as being unmarried and dependent is a part of family whereas the married daughter after marriage forms its separate family as in the present case also. In the present case the applicant No. 1 was residing with her husband and even after the transfer of her husband from Shimla she continue to reside separately. In the present case the applicant No. 1 was residing with her husband and even after the transfer of her husband from Shimla she continue to reside separately. But it is only in the month of February 1997 she requested her employer to stop the H.R.A. These facts clearly reveal that both the applicants have connived to get the Govt. accommodation against the Rules. The applicant No. 1 joined her services on 7.8.1989 and her name stood at serial No. 469 for type-III accommodation on seniority basis, but the employees who jointed their services during the year 1965-66 are yet to be allotted Govt. accommodations. 8. We have heard the (earned counsel for the petitioners as well as learned Addl. Advocate General, for the respondents, and carefully considered their pleadings. Briefly the facts are that the applicant No.1 is a married daughter of applicant No.2 Her father was in service of respondents/State and retired as a registrar from H.P. PWD, on 31st March, 1997, after attaining the age of superannuation. While in service he was allotted Set No.3 in Spring-Field, Chhota Shimla, as per the house allotment rules. The applicant No.2 was entitled to retain the Govt. accommodation upto four months after his retirement, i.e. 31.3.1997. On his request he was further allowed the same upto 31.10.1997.The applicant No. 1 who is in the employment of State of H.P. shifted to accommodation of her father i.e.. applicant No. 2, in Feb. 1997. She submitted application dated Feb. 15,1997 Annexure A/1, to the Controller of K.P. Printing & Stationery Department, Shimla 5, that the house rent allowance being paid to her may not be paid her w.e.f. Feb. 1997, onwards, Vide Annexure-A2 she requested for allotment of Govt. accommodation which was allotted to her father, before his retirement. The request of the applicant No. 1 for allotment of Government accommodation was rejected, vide letter dated 27 June, 1997 Annexure-A4. She submitted another representation Annexure-A5 that too bore no results. The petitioner has challenged rule 8(2) of the Allotment Rules, according to her it is violative of article 14 of the Constitution of India as it is discriminatory on the basis of gender. She submitted another representation Annexure-A5 that too bore no results. The petitioner has challenged rule 8(2) of the Allotment Rules, according to her it is violative of article 14 of the Constitution of India as it is discriminatory on the basis of gender. In support of it she has quoted the judgment of Honble Supreme Court in case Savita Samvedi vs. union of India 1996 (2) SCC 380 and she particularly referred to para 7 of the judgment which is reproduced below: "The railway ministrys circular in that regard appears thus to us to be wholly unfair, gender biased and unreasonable, liable to be struck down under Article 14 of the Constitution. The eligibility of a married daughter must be placed on a part with an unmarried daughter (for she must have been once in that state), so as to claim the benefit of the earlier part of the circular, referred to in its first paragraph, above quoted." 9. In rule 8 (2) un-married daughter has been made eligible for out of turn allotment whereas married daughter does not find mention in the said rule. We are of the view that the present Rule 8(2) discriminates between a married and unmarried daughter. It is gender biased. It is for the retiree to decide as to with whom he should stay. He knows his circumstances best and he may feel that his married daughter would look after him better and it would be unfair that we should impose our choice in this regard. His circumstances may be such that he may feel more comfortable, secure and assured that he would be better looked after by the married daughter, under the circumstances we feel that word un-married preceding the word daughter’ in rule 8 (2) of the Allotment Rules at Annexure A-3 is violative of Articles 14, 15 and 16 of the Constitution of India, hence we struck it down. Keeping in view the above discussions and the facts of the case we direct that Set no. 3, spring Field, Chhota Shimla be allotted to applicant No. 1 from the date her father retired on 31.3.1997 on normal rent. Any excess amount of rent recovered from her father (Applicant No. 2- i.e. the difference between the double the normal rent and normal rent be refunded to applicant No. 2. 3, spring Field, Chhota Shimla be allotted to applicant No. 1 from the date her father retired on 31.3.1997 on normal rent. Any excess amount of rent recovered from her father (Applicant No. 2- i.e. the difference between the double the normal rent and normal rent be refunded to applicant No. 2. With these observations, the original application is finally disposed of with no orders as to costs.