Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 128 (HP)

Madhu Kashyap v. State of H. P.

2023-03-10

SABINA, SATYEN VAIDYA

body2023
JUDGMENT : SATYEN VAIDYA, J. 1. By way of instant petition, petitioner has prayed for the following substantive reliefs: “(i) That the impugned allotment order dated 14.10.2022 Annexure P-3 may kindly be quashed and set aside. (ii) That a writ in a nature of mandamus may very kindly be issued by directing the respondents to allot set 17, Type-II, Kasumpti, Shimla-9 in favour of the petitioner.” 2. Petitioner was allotted Set No. 1/15, Type-II, Royal Hotel, Nabha Estate, Shimla-4 vide allotment order dated 8.4.2021. As per petitioner, she immediately took over the possession of allotted set. Later, petitioner came to know from some reliable resources that Set No. 17, Type-II, Kasumpti, Shimla was to fall vacant on retirement of the incumbent on 31.5.2021. Since Set No. 17, Type-II, Kasumpti, Shimla was more suitable to the petitioner, she, on 9.4.2021, applied for change of accommodation from allotted Set No. 1/15, Type-II, Royal Hotel, Nabha Estate to Set No. 17, Type-II, Kasumpti, Shimla. 3. The grievance of the petitioner is that respondent No. 2 without considering her request for change of the accommodation, vide allotment order dated 14.10.2022 allotted Set No. 17, Type-II, Kasumpti, Shimla in favour of respondent No. 3 on out of turn basis. The petitioner has assailed such allotment in favour of respondent No. 3 to be illegal being in violation of Rule 7 (i) of Himachal Pradesh Allotment of Government Residences (General Pool), Rules 1994 (for short 1994 Rules). Petitioner has claimed preferential right of allotment as against those applicants, who had applied for accommodation for the first time. 4. Respondents No. 1 and 2 have contested the prayer of the petitioner on the ground that the incumbent/ allottee of Set No. 17, Type-II, Kasumpti, Shimla was scheduled to retire on 31.5.2021 but he was granted reemployment for a period w.e.f. 21.6.2021 to 20.6.2022 and in this view of the matter, he was entitled to retain the government accommodation till 20.6.2022. Further case of respondents No. 1 and 2 is that despite allotment of Set No. 1/15, Royal Hotel, Nabha Estate, petitioner had failed to occupy the same till date, which was in violation of Rule 9 (1) of 1994 Rules. Further case of respondents No. 1 and 2 is that despite allotment of Set No. 1/15, Royal Hotel, Nabha Estate, petitioner had failed to occupy the same till date, which was in violation of Rule 9 (1) of 1994 Rules. Respondents No. 1 and 2 have also placed reliance on a communication dated 26.8.2021, issued by Secretary (GAD), Government of Himachal Pradesh to respondent No. 2, intimating thereby that the request of petitioner for change of accommodation could not be accepted as she had applied much earlier than the likely date of vacation. 5. We have heard learned counsel for the parties and have also gone through the record carefully. 6. The reply filed on behalf of respondents No. 1 and 2 is accompanied by communication dated 26.8.2021 (Annexure R-2), issued by Secretary (GAD) to respondent No. 2, whereby the request of petitioner for change of accommodation stood rejected. Though, there is nothing on record to show that the said decision was ever communicated to the petitioner, however, noticeably, the reply to the instant petition stood filed on behalf of respondents No. 1 and 2 on 27.12.2022 and an advance copy thereof was supplied to the learned counsel for the petitioner on the same date. Thus, petitioner came to know about the aforesaid decision of respondent No. 1, whereby the request of petitioner was rejected but petitioner has failed to assail the said decision till date. In this view of the matter, the contention of petitioner regarding non consideration of her request deserves to be rejected. 7. Rule 9 (1) of the 1994 Rules reads as under: “9. Non-acceptance of allotment or failure to occupy the allotted residence after acceptance: If an officer/official fails to accept the allotment of residence of the type to which he is entitled within five days or fails to take the possession of that residence after allotment within eight days from the date of receipt of the letter of allotment, he shall not be eligible for another allotment for a period of one year from the date of allotment letter.” 8. The above noted rules bars the eligibility for a period of one year from the date of allotment letter in case the incumbent fails to take the possession of allotted residence within eight days from the date of receipt of letter of allotment. The above noted rules bars the eligibility for a period of one year from the date of allotment letter in case the incumbent fails to take the possession of allotted residence within eight days from the date of receipt of letter of allotment. Respondents No. 1 and 2 have specifically mentioned in their reply that the petitioner had failed to take the possession of the residence allotted to her till the date of filing of reply, whereas the petitioner has averred in the petition that she had taken the possession immediately after allotment. However, in our considered view, the taking of possession or otherwise in the instant case becomes irrelevant due to a long gap between the date of application submitted by petitioner for change of accommodation i.e. 9.4.2021 and the date of its actual allotment in favour of respondent No. 3 i.e. 14.10.2022. There is a long gap of approximately eighteen months. In the peculiar facts of the case, petitioner cannot be said to have right to a particular accommodation for which she would have waited for such a long period. Assumingly, the area of Kasumpti was more convenient to petitioner, it cannot be said that no other accommodation in the same area under the same category had fallen vacant. It is not the case of petitioner either that no other accommodation had fallen vacant at Kasumpti during this long gap of eighteen months. Thus, we are of the considered view that the claim of the petitioner is not bona-fide. 9. As regards the contention of petitioner regarding her preferential right of allotment of Set No. 17, Type-II, Kasumpti, Shimla, it can be said with certainty, in light of aforesaid facts, that in absence of challenge to the request of petitioner for change in accommodation, the decision taken by respondent No. 1 in that behalf has attained finality and after such decision, no further consideration on the request of petitioner was required. Even otherwise, Rule 7(1) of 1994 Rules, do not vest the petitioner with any preferential right as claimed. Rule 7(1) of 1994 Rules as amended from time to time reads as under: “7. Allotment of residence: (1) Save as otherwise provided in these rules, a residence, falling vacant, may be allotted by the Secretary (GAD) to the Govt. Even otherwise, Rule 7(1) of 1994 Rules, do not vest the petitioner with any preferential right as claimed. Rule 7(1) of 1994 Rules as amended from time to time reads as under: “7. Allotment of residence: (1) Save as otherwise provided in these rules, a residence, falling vacant, may be allotted by the Secretary (GAD) to the Govt. of Himachal Pradesh to an applicant desiring a change of accommodation in that type in genuine cases under the provisions of rule 13 or to an applicant without accommodation in that type of residence having the earliest date of priority for that type of residence, subject to the following conditions, namely: (i) the Secretary shall not allot a residence of a type higher than to what the applicant is eligible under rule-5; (ii) the Secretary shall not compel any applicant to accept a residence of a lower type than to what he is eligible under rule 5 and (iii) the Secretary, on request from an applicant for allotment of a lower category residence may allot to him a residence of one type below for which the applicant is eligible under rule 5 on the basis of his priority date for the same.” 10. Thus, under Rule 7(1) supra, the Director has been vested with discretion to allot an accommodation either to an applicant desiring a change in accommodation or to an applicant who has applied for the first time. It has also been specified that for an allottee seeking change in accommodation, the Director is to consider such request in genuine cases only. 11. In light of above discussion, we do not find any merit in the petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.