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2013 DIGILAW 509 (UTT)

L. R. Arya v. State of Uttarakhand

2013-08-02

V.K.BIST

body2013
Judgment V.K. Bist, J. On 24th July, 2013, this Court directed the respondent nos. 1 to 3 to file their reply within a period of two weeks from that day showing cause as to why some persons were permitted to occupy the Govt. accommodation, even after their transfer/retirement and why discriminatory approach has been adopted in regard to other persons. Two weeks time has not been completed till date. Counsel for the petitioner Smt. Neetu Singh insisted that since application for extension of time to occupy the accommodation in question has been rejected, the writ petition may be heard finally. In such circumstances, the matter is being heard finally today itself. The respondent nos. 1 to 3 are not required to file affidavit, as directed by this Court on 24.07.2013. 2. This petition has been filed for the following reliefs:- “I. Issue a writ, order or direction in the nature of certiorari quashing the order/letter dated 01.05.2013 (annexure-8) and letter dated 13.05.2013 (annexure-9) issued by respondent no.4. II. Issue a writ, order or direction in the nature of mandamus directing the respondents not to evict the petitioner from the residential accommodation A-1, Bairaj Colony, Rishikesh, Dehradun, till the expiry of extension period of one year from 01.07.2012, as extended by State Government and also directed by Head of Department. III. Issue a writ, order or direction in the nature of mandamus directing the respondents to charge the rent of the residential accommodation of the petitioner in accordance with G.O. dated 24.09.2008 (annexure-2) and three times rent of prescribed rent i.e. Rs. 1260+15=1275/- per month may be charged from petitioner till the expiry of extension period or further order by State Government regarding extension in this regard. IV. Issue a writ, order or direction in the nature of mandamus directing the respondents not to initiate any recovery proceedings against the petitioner for recovering rent on penalized rent. V. Issue any other order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. VI. Award cost of the petition.” 3. Formerly, the petition was heard on 29.05.2013. On that date, time was granted to the respondents for filing counter affidavit and case was directed to be listed in the month of July, 2013. VI. Award cost of the petition.” 3. Formerly, the petition was heard on 29.05.2013. On that date, time was granted to the respondents for filing counter affidavit and case was directed to be listed in the month of July, 2013. Thereafter, considering the submissions of learned counsel for the parties and in the interest of justice, this Court permitted the petitioner to stay in the accommodation in question till 30th June, 2013 with the condition to deposit a sum of Rs. 24,000/- in pursuance of notice dated 01.05.2013, simultaneously the petitioner was directed to vacate the premises in question on or before 01.07.2013. Again, an application was filed by the petitioner seeking modification of the order dated 29th May, 2013 and this Court, upon hearing the counsel for the parties, modified its order and permitted the petitioner to vacate the premises in question positively on or before 1st August, 2013. Again, one application was moved for extension of time, which was rejected vide order dated 01.08.2013. 4. By way of instant petition, the petitioner has challenged the order dated 01.05.2013 by which the petitioner has been directed to deposit a sum of Rs. 96,100/- as rent w.e.f. 01.04.2012 to 30.04.2013, as well as order dated 13.05.2013 by which the Executive Engineer, Project Division, Rishikesh requested the District Magistrate, Dehradun to recover the amount of Rs. 95,100/- from the petitioner. 5. At the outset, learned counsel for the petitioner argued that one counter affidavit has been filed by respondent no.4, though he was not authorized by the State Government to file the same. In this regard, she submitted that as per the Govt. Order dated 04.06.2005, respondent no.4 cannot file counter affidavit without permission from the State Government, and that counter affidavit should not be read in the instant matter. I have considered this argument. Since petition was filed before me and under this Court’s directions to the Chief Standing Counsel, counter affidavit was filed by respondent no. 4, therefore, objection raised by the counsel for petitioner is turned down. 6. Learned counsel for the petitioner then referred Rule 18-A(5)(a) of U.P. Subsidiary Rules read with U.P. Fundamental Rules given in Financial Hand Book Volume-II (part 2 to 4) and submitted that in view of this Rule, the petitioner is entitled to occupy the accommodation in question, even after his transfer on payment of rent triple to the normal rent. 6. Learned counsel for the petitioner then referred Rule 18-A(5)(a) of U.P. Subsidiary Rules read with U.P. Fundamental Rules given in Financial Hand Book Volume-II (part 2 to 4) and submitted that in view of this Rule, the petitioner is entitled to occupy the accommodation in question, even after his transfer on payment of rent triple to the normal rent. The Subsidiary Rules, as relied upon by the petitioner is quoted below:- “Rule 18-A(5)(a): The incumbent of a post to which a residence is allotted shall vacate the residence occupied by him on his transfer before the expiry of the period of joining time (exclusive of journey time permissible to him). He may be permitted to occupy the residence in his occupation beyond the period of joining time as indicated above on payment of rent as follows:- (i) normal rent under F.R. 45-A-IV (b) for one month from the date of transfer; (ii) the standard rent of the residence for the next two months; (iii) double the standard rent for the following two months; and (iv) triple the standard rent for any subsequent period.” 7. The aforesaid Rule provides that the incumbent of a post to which a residence is allotted, shall vacate the residence occupied by him on his transfer before the expiry of the period of joining time (exclusive to journey time permissible to him). Mandatory condition to vacate the residential accommodation before the period of joining is there. However, this Rule further provides that such incumbent may be permitted to occupy the residence in his occupation beyond the period of joining time on payment of rent as given in the Rule. 8. Whether an incumbent should be permitted to occupy the residence in his occupation beyond the period of joining time, is the discretion of the competent authority. In such view of the matter, the petitioner and other person cannot claim, as a right, that he himself be permitted to occupy the official residence after his transfer for an unlimited period. In the present case, from perusal of the order impugned, it is clear that no such permission was granted to the petitioner which resulted issuance of notice to him for making payment of rent on higher side. 9. In the present case, from perusal of the order impugned, it is clear that no such permission was granted to the petitioner which resulted issuance of notice to him for making payment of rent on higher side. 9. Learned counsel for the petitioner then submitted that infact several other persons are being permitted to occupy the official accommodation, even after their transfer/retirement on payment of triple standard rent and on the basis of the Rule, so referred, the petitioner may also be permitted to occupy the house in question on payment of triple standard rent. As already observed that this is the discretion of the competent authority, and in the case in hand, the competent authority has not permitted the petitioner to occupy the house beyond joining time, no direction can be issued by the Court for that purpose. 10. Another submission of learned counsel for the petitioner is that wife of the petitioner is ailing for which she has undergone heart surgery. It is also contended that treatment of petitioner’s wife is going on at Rishikesh and she is required to stay there. Learned counsel for the petitioner further submitted that due to this reason, wife of the petitioner moved some application, which was referred by the office of Chief Minister to respondent no.2 and consequently one year’s time was given to the petitioner to reside in that accommodation. She submitted that even now situation is not changed and the petitioner needs that accommodation for keeping his wife at that place and in such circumstances, the petitioner should be permitted to retain the house in question on payment of rent triple the standard rent. Though, matter of the petitioner for retaining the house in question can be recommended by anybody, but it is only the competent authority, which has to take final decision in the matter. In the present case, there is nothing on record, which could show that any order was passed by the competent authority permitting the petitioner to reside in the house in question. From perusal of record, I do not find that neither there is any representation of the petitioner made to the competent authority, seeking permission to occupy the official accommodation nor there is any order of the competent authority. From perusal of record, I do not find that neither there is any representation of the petitioner made to the competent authority, seeking permission to occupy the official accommodation nor there is any order of the competent authority. Counsel for the petitioner referred the letter dated 6th June, 2013 sent by the office of Chief Engineer/Head of the Department (Irrigation-Revenue Cell), Irrigation Department, Uttarakhand, Dehradun to the Chief Engineer (Project) Garhwal, Irrigation Department, Dehradun, annexing the letter of petitioner’s wife dated 27.05.2013 addressed to the Chief Minister and also remark of Dy. Secretary, Chief Minister Office of the same date, requesting him to take necessary action on the same and inform about the action taken. The petitioner also referred the application of his wife, addressed to the Chief Minister on 27th May, 2012 and letter of one Gokulanand Lohani, Dy. Secretary, Chief Minister to the Chief Engineer/Head of the Department, Irrigation Department, Uttarakhand, Dehradun, alongwith the copy of the application and request was made for taking action as per rule. But the said correspondence does not help the petitioner in any manner, as no decision has been taken by the competent authority on the representation of the petitioner. On going through the record, I also do not find any letter written by the petitioner to the competent authority, directly, with the request to retain the accommodation in question. 11. Learned counsel for the petitioner lastly argued that the petitioner is not having any official accommodation at Roorkee, therefore, till such official accommodation is allotted to the petitioner, the petitioner may be permitted to reside in the house in his occupation. Learned counsel for the petitioner further submits that house no. A-22/2 has now been allotted to Mr. Ajay Kumar. She also referred Office Memorandum dated 5th April, 2013. The accommodation house no. A-22/2 has been allotted to one Ajay Kumar, but in the counter affidavit the respondent no.4 has asserted that the House No. A-22/2, Roorkee was allotted to the petitioner. It is also to be noted that the petitioner is the Secretary, Gazetted Accommodation Allotment Committee, Roorkee and he himself allotted the House No. A-22/2 to himself on 3rd April, 2012 but he did not occupy the same and after one year, he allotted the same to one Ajay Kumar, therefore on the basis of this fact also, the petitioner is not entitled for any relief. The conduct of the petitioner is that he has not applied for any Govt. residential accommodation and the petitioner did not make compliance of the Court’s orders passed on 29th May, 2013, 24th July, 2013 and retained the official accommodation No. A-22/2. 12. Government Officials have no legal right to retain Government accommodation, after their transfer or retirement. Every Government Official is required to vacate the official accommodation, after his/her transfer. In case Govt. official is permitted to retain the official accommodation, even after his/her transfer or retirement, the person who has to join at his/her place will not get any accommodation. The competent authority must ensure that after transfer, every employee must vacate the official accommodation in time. 13. For the preceding reasons, the writ petition is dismissed. No order as to costs.