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2016 DIGILAW 4073 (ALL)

RAMESH CHAND VERMA v. STATE OF U. P.

2016-12-17

SIDDHARTHA VARMA, TARUN AGARWALA

body2016
JUDGMENT Hon’ble Siddhartha Varma, J.—The petitioner retired as an Executive Engineer of the Upper Ganga Canal Adhunikikaran Division 4, District Bulandshahar, on 30.7.2006. Thereafter, he continued to retain his official accommodation i.e. House No. A-5, Madhya Ganga Canal Colony, Bulandshahar till as late as September, 2010, when he was served with a citation to appear and was required to deposit an amount of Rs. 2,75,180/- towards arrears of rent. 2. The petitioner being aggrieved by the citation to appear dated 6.9.2010, filed the instant writ petition. Contention of the petitioner is that when he retired several official accommodations of the Department in Bulandshahar were lying vacant. Not only that, there were several retired personnel of the department also occupying various Government accommodations and that his request to retain the accommodation had also resulted in certain favourable communications between the Chief Engineer and the Secretary of the Uttar Pradesh Government. 3. The main plank of the petitioner’s argument, however, is that under the Subsidiary Rule 18-A of Chapter IV of the Financial Hand Book, he could have retained the official accommodation after he retired by paying rent at the rate of triple the standard rent. Subsidiary Rule 18-A of the Financial Hand Book reads as under : “(1) The incumbent, whether permanent or temporary, of a post to which a residence has been allotted under Rule 18 shall be considered to be in occupation of the residence during the period of his incumbency unless the allotment is changed or suspended under these rules. (2) A Government servant shall not be considered to be in occupation of a residence only by reason of the fact that he shares it with another Government servant who is in occupation thereof. (3) A Government servant shall not be considered to be in occupation of a residence when he proceeds on leave unless the Government otherwise direct. But if he is permitted to prefix gazetted holidays to his leave or affix gazetted holiday to leave or joining time, he shall be considered to be in occupation of the residence for the period of the said holidays. (4) When a post is vacant, no one is liable for the rent of the residence allotted to it. But if he is permitted to prefix gazetted holidays to his leave or affix gazetted holiday to leave or joining time, he shall be considered to be in occupation of the residence for the period of the said holidays. (4) When a post is vacant, no one is liable for the rent of the residence allotted to it. In such cases it is not necessary to suspend the allotment of the residence to the post, but the officer who is in immediate administrative control of the post must communicate to the Accountant General the fact that the post is vacant and the period for which it will remain vacant. (5) (a) The incumbent of a post to which a residence is allotted shall vacant 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. (b) In case, however, permission for continued occupation beyond joining time as referred to in sub-paragraph (a) above, is not obtained or is not granted, the occupation will be unauthorised and the incumbent will be liable to action in accordance with the law on the subject. (c) (i) In the event of death or retirement from service the incumbent and/or his family, as the case may be, may remain in occupation of the residence after the date of death or retirement, for a period of one month at normal rent and thereafter for a period not exceeding three months at the standard rent of the residence. (ii) In the event of resignation, dismissal or removal from service, the incumbent and/or his family, as the case may be, may remain in occupation of the residence for a period of one month at normal rent from the date of resignation, dismissal or removal from service. (ii) In the event of resignation, dismissal or removal from service, the incumbent and/or his family, as the case may be, may remain in occupation of the residence for a period of one month at normal rent from the date of resignation, dismissal or removal from service. (iii) Where the concession of rent-free quarter was enjoyed by the incumbent before the event of death, dismissal, removal or retirement from service, the same shall be admissible to him and/or his family, as the case may be, for a period of one month from the date of death, dismissal, removal or retirement from service: Provided that if the residence is occupied even beyond the period stipulated in clauses (i), (ii) and (iii) of sub-para (c) above, the incumbent shall be required to pay triple the standard rent of the residence for any such period.” 4. The counsel for the petitioner relying on the Subsidiary Rule 18-A, argued that no Government Order could supplant a statutory provision and submitted that Subsidiary Rule 18-A, since is a part of the Financial Hand Book, has a statutory force. 5. In reply, the learned Standing Counsel has placed reliance on a Government Order dated 11.1.2002 by which the State Government has fixed a certain rate of rent payable by retired officials who had retained their official accommodations after their retirements and has argued that the amount which is being recovered from the petitioner has been charged on the basis of the rate which has been fixed by the Government Order. 6. He further argued that Subsidiary Rule 18-A had been formulated under Fundamental Rule 45 of Chapter V of the Financial Hand Book and submitted that just as the Subsidiary Rule 18-A was framed under the Rule 45, the Government order dated 11.1.2002 was also promulgated under the Fundamental Rule 45 as it had also got the approval of the Governor and that both were on an equal footing. 7. 7. Upon consideration of the respective arguments, we find that the Subsidiary Rules which find place in the Financial Hand Book and the Government order dated 11.1.2002 have been issued under Regulation 45 of the Financial Hand Book, which reads here as under : “The Principles governing the allotment to Government servants, for use by them as residences, of buildings owned or leased by the Government, or portions thereof, which the Government may make available for the purpose and the circumstances in which a Government servant shall be considered to be in occupation of a residence shall be regulated by which rule and orders as may be issued by the Governor. (For rules made by the Governor under this rule, see Subsidiary Rules, Chapter IV).” 8. From a bare perusal of the Regulation 45 of the Financial Hand Book, it is apparent that the State Government, when it provides buildings for residential purposes to Government servants, can regulate its occupation by Rules and Orders which would be issued by it. In the instant case, we find that just as Subsidiary Rule 18-A owes its origin to the Fundamental Rule 45, the Government order dated 11.1.2002 also originates from the Fundamental Rule 45 and in fact the latter would supplement and amend the Subsidiary Rule 18-A so far as the rate of rent is concerned. 9. Under these circumstances, it cannot be said that the Subsidiary Rule 18-A was supplemented by an ipse-dixit Government Order. In fact, the rate of the rent as has been given by the Rule 18-A has been amended by a Government Order which had the due approval of the Governor. As the recovery of the excess amount which is due to the Government from the petitioner has been calculated on the basis of the Government Order dated 11.1.2002 we find that the recovery cannot be held to be erroneous or illegal. 10. For the reasons stated above, we do not find any merit in the writ petition. The writ petition is dismissed. 11. However, any rent which has been deposited by the petitioner towards the amount which is being recovered under the impugned recovery citation would be duly adjusted and the petitioner would be liable only for the remaining amount. 12. 10. For the reasons stated above, we do not find any merit in the writ petition. The writ petition is dismissed. 11. However, any rent which has been deposited by the petitioner towards the amount which is being recovered under the impugned recovery citation would be duly adjusted and the petitioner would be liable only for the remaining amount. 12. The counsel for the petitioner has further argued that because of the existence of the recovery against him his representation for the payment of pension in the prevailing scales after the coming into existence of the new pay-scales is not being considered. 13. We, therefore, direct that in case the petitioner deposits the amount which is due from him, his representation for the revision of his pension shall be decided expeditiously within a period of four weeks from the date of the production of a certified copy of this order.