Delhi High Court - Orders
Prabhu Nath Prasad (Dig, Itbp) vs Union Of India And Ors on 22 September, 2021
Author: Amit Bansal
Bench: Chief Justice, Amit Bansal
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9596/2021
PRABHU NATH PRASAD (DIG, ITBP) ..... Petitioner
Through: Mr. Arvind Kumar Shukla, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Vijay Joshi, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 22.09.2021 CM APPL. 29702/2021 (Exemption) Allowed, subject to all just exceptions.
Application stands disposed of.
W.P.(C) 9596/2021 & CM APPL. 29701/2021 (Stay) Issue notice.
Mr. Vijay Joshi, learned counsel accepts notice on behalf of Respondents No. 1 and 2 and seeks time to take instructions and to file counter affidavit.
Time as prayed for is granted.
Let counter affidavit be filed before the next date of hearing. Challenge in the present petition is to Rule 43 of Central Government General Pool Residential Accommodation Rules, 2017 (hereinafter referred to as '2017 Rules'), which restricts the period of retention of GPRA at the Signature Not Verified AMIT NARAYAN BHARTHUAR W.P.(C) 9596/2021 Page 1 of 5 Location: Signing Date:25.09.2021 20:30:56 last place of posting, in case of posting of the allottee to a non-family station, as being ultra vires and violative of Article 14 of the Constitution of India. Challenge is also laid to O.M. dated 04.03.2021, whereby the Competent Authority has granted extension of retention of GPRA to Central Armed Police Force (CAPF) Personnel posted to non-family stations, beyond a period of three years upto 30.06.2021 and has directed that beyond the said cut-off date, allottees shall be liable to penal action in case the allotted accommodation is not vacated.
Learned counsel for the Petitioner submits that recognizing the hardship faced by the employees posted to non-family stations, an O.M. dated 07.09.1998 was issued, allowing retention of GPRA to employees transferred to North-East Regions for their balance tenure or three years, whichever was longer. Vide O.M. dated 15.09.1998, the Competent Authority extended the benefit to employees posted in Jammu and Kashmir and the CAPF personnel posted therein were also given the benefit of GPRA for their families at the last place of posting. Vide subsequent O.M. dated 14.07.2010, the concession / benefit was also made applicable to CAPF personnel posted at Left Wing Extremists (LWE) areas, recognizing the fact that these personnel carried out their duties in onerous conditions as also the need to provide accommodation to the families, when they are posted to the non-family stations.
Learned counsel contends that contrary to the letter and spirit of the said O.M., the Ministry of Housing and Urban Affairs issued the 2017 Rules, restricting the retention of GPRA, by virtue of Rule 43, to a period of three years, oblivious of the fact that the CAPF personnel form a distinct class from the Central Government Employees, whose posting at non-family Signature Not Verified AMIT NARAYAN BHARTHUAR W.P.(C) 9596/2021 Page 2 of 5 Location: Signing Date:25.09.2021 20:30:56 stations is capped at a maximum of three years, whereas no such upper limit exists for the CAPF personnel. It is pointed out that Petitioner, who is BSF personnel, has been posted to non-family stations for a duration of over three years.
It is further contended that the objective of granting the benefit of retention of GPRA at the last place of posting is that while the CAPF employees serve in the remotest corners of the country in harsh environment and onerous conditions and most of the time in insurgency areas, their families are safe and secure and their children have access to education and medical facilities at these family stations. It is also submitted that in the wake of Pandemic Covid-19, it is all the more difficult for the families to vacate the present accommodation and find suitable premises on rent.
Mr. Joshi, learned counsel for the Respondents opposes the petition on two-fold grounds. Learned counsel submits that two writ petitions were filed earlier in this Court claiming similar reliefs and the Petitioner therein was unsuccessful in getting any substantial relief. It is, thus, not open to seek the same relief over and over again. Mr. Joshi further submits that in the said petitions, this Court had directed the Respondents to decide the representations of the Petitioner which was duly done, and extensions of retention of GPRA were granted beyond three years upto 30.06.2021 and no further relief can be granted. He further submits that it is always open to the Petitioner to find private accommodations for their families and the rents payable will be reimbursed by payment of HRA.
We heard the learned counsels for the parties Having heard the learned counsels, we find that there is prima facie merit in the contention of the learned counsel for the Petitioner that the Signature Not Verified AMIT NARAYAN BHARTHUAR W.P.(C) 9596/2021 Page 3 of 5 Location: Signing Date:25.09.2021 20:30:56 CAPF personnel form a distinct class from the Central Government employees insofar as the restriction of three years on retention of GPRA is concerned. Invariably in the case of the latter, the posting tenures are more or less for a maximum period of three years and, therefore, the restriction of retention for three years is in harmony and sync with the posting tenures. However, in case of CAPF personnel, the tenures of postings to insurgency / Hard / LWE areas, etc. i.e. non-family stations are way beyond the three years period. The tabular representation in the writ petition is evidence to the fact that some of the Petitioner has had non-family station tenures from 2007 / 2008 / 2010 till date. Prima facie, the condition of capping the retention period to three years will inure to the disadvantage of the paramilitary personnel, who beyond a doubt perform onerous duties in harsh environments. It is the duty of the welfare State to ensure safety and security of their families while they perform their duties to protect the citizens of this country The laudable object of the O.Ms issued by the Respondents permitting retention of GPRA, when the allottees are posted to non-family stations, in our prima facie view is sought to be defeated by restricting the retention period, overlooking the fact that the Petitioner continue to be posted at non- family stations and compelling the families at this stage to vacate the accommodation, more particularly, in the wake of Covid-19 would result in causing grave hardship and harassment. It is not an unknown fact that in these Pandemic times, the landlords are not even readily forth coming to induct tenants and the result of eviction would be that the families of the Petitioner would be without a shelter over their heads.
Petitioner has thus made out a prima facie case in their favour and the Signature Not Verified AMIT NARAYAN BHARTHUAR W.P.(C) 9596/2021 Page 4 of 5 Location: Signing Date:25.09.2021 20:30:56 balance of convenience also lies in their favour. If an interim order staying the operation of the O.M. dated 04.03.2021 is not granted, irreparable loss shall be caused to the Petitioner.
As an ad-interim measure, we hereby stay the operation, implementation and execution of OM No. 22019/1/2020-Pol-II dated 04.03.2021, which restricts the period of retention of GPRA upto 30.04.2022, at the last place of posting of the Petitioner, who is currently posted to non-family stations and also stay the Show Cause Notice dated 09.08.2021 (Annexure P-11 to the memo of this writ petition). The stay shall operate in favour of the Petitioner till the next date of hearing.
List on 29.10.2021 along with W.P. (C) No. 7486/2021.
CHIEF JUSTICE AMIT BANSAL, J SEPTEMBER 22, 2021/rd Signature Not Verified AMIT NARAYAN BHARTHUAR W.P.(C) 9596/2021 Page 5 of 5 Location: Signing Date:25.09.2021 20:30:56