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2020 DIGILAW 560 (HP)

Rati Lal v. State of Himachal Pradesh

2020-09-04

JYOTSNA REWAL DUA, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - The petitioner vide letter dated 28.05.2020 (Annexure P-4) and thereafter vide Office Order dated 22.08.2020 (Annexure P-6) has been directed to vacate the official accommodation and aggrieved thereby has filed the instant writ petition for grant of the following relief: "That impugned letter dated 28.05.2020, Annexure P-4 and office order dated 22.08.2020, Annexure P-6, may very kindly be quashed and set aside with directions to respondents No.1 to 3 to allow the petitioner to retain Government accommodation, i.e. Set No.1, District Jail, Kaithu, Shimla-171003." 2. The petitioner was posted as Warder in the District Jail, Kaithu, Shimla, vide order dated 16.04.2012 and had been staying in the jail lines. Thereafter, vide order dated 12.04.2017, the petitioner was allotted Government accommodation i.e. Set No. 1, Kaithu Jail, Complex, District Shimla and is residing there eversince. 3. On 25.09.2019, respondent No.2 framed Standing Orders under the head "Authorization of Residential Accommodation in the Department of Prisons and Correctional Services, Himachal Pradesh" and in terms of Clause-6 thereof, the Government accommodation could only be retained for a period of three years, which reads as under: "6. The working staff of jail shall be provided Government accommodation for a period of three years. On completion of the period of three years, the said official has to vacate allotted Government accommodation." 4. It would be noticed that under Clause-6, the Government accommodation can be claimed only for a period of three years and thereafter it has to be vacated. It is in consonance with Clause-6 that petitioner, for the first time, was issued a notice dated 06.05.2020 directing him to vacate accommodation within 15 days. However, the petitioner did not vacate the same and rather filed a representation dated 08.05.2020 wherein he requested the respondents to grant him permission to retain the accommodation for a period of one year as his family had been residing with him and also on the ground that on account of Covid pandemic, it was difficult to have private accommodation. 5. Even though, the representation made by the petitioner was not considered, however, again vide order dated 28.05.2020, he was directed to vacate the premises within 15 days. The petitioner again represented on 08.06.2020. 6. The petitioner has not clearly mentioned about the outcome of the representation. 5. Even though, the representation made by the petitioner was not considered, however, again vide order dated 28.05.2020, he was directed to vacate the premises within 15 days. The petitioner again represented on 08.06.2020. 6. The petitioner has not clearly mentioned about the outcome of the representation. However, vide Office Order dated 22.08.2020, the petitioner has been informed that 4th respondent Neelam Chaudhary has been appointed as Warder and allotted the accommodation in possession of the petitioner subject to the following conditions as contained in Annexure P-6: "1. Government accommodation will be alloted for a period of 03 years w.e.f. the date of allotment/possession. 2. Allottee will have to keep his family with him in allotted accommodation. 3. Electricity and water charges will be paid by allottee himself. 4. The inventory list of items will be prepared at the time of possession. 5. No alteration/repair work will be done without the knowledge of undersigned." 7. We have heard Shri C.D.Negi, learned counsel for the petitioner and the learned Advocate General for the respondents/State. 8. The practice of retaining official accommodation by persons in official capacity beyond the tenure is over, has been repeatedly frowned upon by various Courts. The unauthorized occupants must recollect that the 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. The unauthorized occupants must appreciate that their act of overstaying in the premises directly infringes the right of another. No law or directions can entirely control this act of disobedience but for self-realization among the unauthorized occupants. 9. This was so held by the Hon'ble Supreme Court in S.D. Bandi vs. Divisional Traffic Office, KSRTC & others, (2013) 12 SCC 631 , wherein it was observed as under: "34. It is unfortunate that the employees, officers, representatives of people and other high dignitaries continue to stay in the residential accommodation provided by the Government of India though they are no longer entitled to such accommodation. Many of such persons continue to occupy residential accommodation commensurate with the office(s) held by them earlier and which are beyond their present entitlement. 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. Many of such persons continue to occupy residential accommodation commensurate with the office(s) held by them earlier and which are beyond their present entitlement. 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 entirely control this act of disobedience but for the self realization among the unauthorized occupants. The matter is disposed of with the above terms and no order is required in I.As for impleadment and intervention." 10. Earlier to that in Wazir Chand vs. Union of India & others, (2001) 6 SCC 596 , the Hon'ble Supreme Court was considering a case wherein an employee of the Railways continued to occupy the government quarters. The Hon'ble Supreme Court in its order upheld the principle that unauthorized occupants have to pay penal rents and went to the extent of holding that the Government was entitled to even withhold gratuity amount, payable to the employee, towards the penal rent. The order of the Hon'ble Supreme Court reads as under: "These appeals are directed against the orders of the Central Administrative Tribunal rejecting the claim of the appellant, who happens to be a retired Railway servant. Admittedly, the appellant even after superannuation, continued to occupy the Government quarter, though being placed under hard circumstances. For such continuance, the Government, in accordance with Rules, has charged penal rent from the retired Government servant, and after adjusting the dues of the Government, the balance amount of the gratuity, which was payable, has been offered to be paid, as noted in the impugned order of the Tribunal. The appellants' main contention is that in view of the Full Bench decision of the Tribunal against which the Union of India had approached this Court and the Special Leave Application was dismissed as withdrawn, it was bounden duty of the Union of India not to withhold any gratuity amount, and therefore, the appellant would be entitled to the said gratuity amount on the date of retirement, and that not having been paid, he is also entitled to interest thereon. We are unable to accept this prayer of the appellant in the facts and circumstances of the present case. The appellant having unauthorisedly occupied the Government quarter, was liable to pay the penal rent in accordance with Rules, and therefore, there is no illegality in those dues being adjusted against the death-cum-retirement dues of the appellant. We, therefore, see no illegality in the impugned order which requires our interference. The appeals stand dismissed." 11. At this stage, we may note that ratio laid down in S.D. Bandi's case (supra) has thereafter been reiterated by the Hon'ble Supreme Court in Lok Prahari vs. State of U.P. and others, (2016) 8 SCC 389 . 12. The petitioner could not place any fact or law which could support his case for overstaying in the official accommodation without any authority of law. The petitioner is bound to follow the rule of law or else it would amount to gross indiscipline. It has to be remembered that the public servants in such like matters are not requested by the Government, but are directed and the orders of the Government are in the nature of a command for the government servants. 13. It is then argued by Shri C.D.Negi, learned counsel for the petitioner that because of the difficult and hard circumstances caused by the pandemic, it would be difficult to find the accommodation. 14. To say the least, this contention of the learned counsel for the petitioner is fallacious because we can take judicial notice of the fact that it is on account of Covid pandemic that many of the accommodations are lying vacant and if the petitioner was really serious, he should have by now occupied the same by vacating the official accommodation. 15. As observed above, the legal position is well settled. Anyone who occupies official accommodation beyond the permissible period is bound by the rules that govern the retention of the said accommodation. 16. Notably, in the present case, leniency is sought on compassionate grounds and due to pandemic. But, then it is well settled that compassion beyond law is not permissible. The Standing Orders do not permit a period beyond three years in the official accommodation and the petitioner cannot claim any exemption or exception to the applicability of the Standing Orders. 17. Notably, in the present case, leniency is sought on compassionate grounds and due to pandemic. But, then it is well settled that compassion beyond law is not permissible. The Standing Orders do not permit a period beyond three years in the official accommodation and the petitioner cannot claim any exemption or exception to the applicability of the Standing Orders. 17. Not only is the petition without merit, but the stay of the petitioner in the official accommodation is totally unauthorized. Therefore, while dismissing the petition, we direct the petitioner to vacate the official accommodation latest by 13th September, 2020 or else he shall not only be liable to pay penal rent at the rate of Rs.1,000/- per day, but shall also be liable for disciplinary action. 18. The respondents, in turn, are also directed to ensure that no provision of the Standing Orders is unnecessarily diluted and to ensure that there is fair and suitable distribution of the official accommodation strictly in accordance with the Standing Orders and no one is permitted to stay in the Government accommodation beyond the period of three years, as it is one of the grounds taken by the petitioner in the petition that similarly situated Chief Warders/Warders throughout the State of Himachal Pradesh are living in the Government accommodation, though without naming any particular person. 19. Consequently, the writ petition is dismissed in limine, so also the pending application(s), if any.