Punjab-Haryana High Court
Chandigarh Administration, Union ... vs Sham Singh on 1 December, 1992
Equivalent citations: AIR1993P&H193, AIR 1993 PUNJAB AND HARYANA 193, 1993 LAB IC 1246 1994 HRR 167, 1994 HRR 167
ORDER S.S. Sodhi, J.
1. The matter here concerns the allotment of government residential accommodation in Chandigarh to Children and other specified relations of a government servant in occupation of such accommodation at the time of his retirement. A special concession has been granted to those specified relations of the retiring government servant of out of turn allotment of government residential accommodation on their fulfilling the conditions prescribed in this behalf. The controversy now raised in with regard to the modification of such conditions.
2. It was by the order of the Chief Commissioner,. Chandigarh of April 15, 1974 (Annexure P-3) that specified relations of a retiring government servant were for the first time rendered eligible for priority in allotment of government residential accommodation on their fulfilling the conditions prescribed therein. This order provided that if such specified relation:
(a) was a government servant eligible for general pool allotment, and
(b) had been sharing accommodation with the retiring officer for at least six months before his retirement that he would be allotted a residence of his entitled type if available at that time and if not a type next below, if acceptable to him. It was further provided that the residence he shared with the retiring officer too may be allotted to him if he was eligible for the same or higher type.
3. It appears that on account of the ever increasing waiting period for 'in turn' allotment of government residential accommodation to those entitled, there was rethinking in the Chandigarh Administration with regard to the April 15, 1974 (Annexure P-3) policy culminating in the letter of the Home Secretary of June 10, 1987 (Annexure P-4) to the Secretary of the House Allotment Committee recording therein the conclusion that this policy i.e. of April 15, 1974, "is unfair since it has resulted in the allotment of houses on out of turn basis to government servants who have very few years of service whereas government employees with a large number of years of service are still waiting for 'in turn' allotment" and that it has accordingly been decided to discontinue this policy with immediate effect. Retiring government servants in possession of government accommodation in accordance with the erstwhile policy of April 15, 1974, were, however, given three months time to vacate it.
4. Later, however, on further reconsideration the Chandigarh Administration came forth with a new policy in supersession of that of April 15, 1974, the instructions issued by the letter of June 10,1987 (Annexure P-4) and the further modification thereof by the letter of September 28, 1987. This new policy being contained in the order of January 30, 1989 (Annexure P-5). In terms of this new policy, the specified relations of a government 'servant, retiring on or after Febryary 28,1989 and who had been allotted general pool accommodation, were rendered eligible for out of turn allotment from the general peol only if such relation had been residing with the retiring government servant, after he had been in government service, for a period of not less than three years continuously immediately preceding the date of retirement of the retiring government servant. Further, it was provided that this concession of out of turn allotment would not be available if the retiring employee or any member of his family owns a house in Chandigarh, S. A.S. Nagar or Panchkula.
5. As regards government servants who retired before February 28, 1989, but after June 9, 1987, it was provided that the eligibility of their specified relations for out of turn allotment of government residential accommodation would be considered in accordance with the earlier policy of April 15, 1974.
6. In dealing with the revised policy of January 30, 1989 (Annexure P-5) the view expressed by the learned single Judge was:--
"The classification of retiring government employees viz. those retiring on or before February 28, 1989 and after February 28, 1989 and before June 9, 1987 is wholly arbitrary. The condition of the policy decision contained in para No. 8 of the policy reproduced supra is unintelligible. There is no logic in saying that the concession of out of turn allotment of accommodation from the general pool would not be available to the eligible dependents of government servants retiring on or after February 28, 1989 where the retiring government employee or any member of his family owns a house at Chandigarh or in the neighbouring urban states of S. A.S. Nagar (Mohali) and Pauch-kula. A family member of a retiring government servant may be having a house in Charndigarh or in the urban estates of Pan-hkula or Mohali but he may not permit his relation, the retiring government employee, eligible dependent of retiring government employee to live with him in this house. A family member of a government servant 'who owns a house in Chandigarh or in the urban estates of Panchkula or Mohali, but the government employee has retired from service before February 28, 1989, the embargo put in this clause will not be applicable to that government employee. To say the least this condition imposed in the order is not only unfair but wholly arbitrary. The entire policy decision smacks of arbitrariness and cannot be sustained."
7. The impugned order of January 30, 1989 (Annexure P-5) was consequently quashed as being arbitrary and violative of Article 14 of the Constitution. With this conclusion we cannot, with respect, possibly agree.
8. At the very out set, what deserves mention is that this impugned policy of January 30,1989 (Annexure P-5) came up for consideration before a Division Bench in Civil Writ Petn. 12130 of 1989 (Jaswant Singh Shah v. Union Territory Administration) decided on December 13,1989 and it was held that this order was not, in any manner, arbitrary or violative of Article 14 of the Constitution.
9. Quite apart from the decision of the Division Bench in Jaswant Singh Shah's case (supra), it will be seen that the basic fallacy that the learned single Judge fell into, was to consider the concessions contained in the orders of April 15, 1974 (Annexure P-3) or January 30,1989 (Annexure P-5) as being for the benefit of the retiring government servants, when it was observed, "the purpose of making out of turn allotment to the relation of a retiring government employee is to enable the latter to continue to reside in the official accommodation in his possession even after retirement. In other words, not to make the retiring government employee shelterless." In the same strain, it was further said, "the object of the policy decision is to benefit the retiring government employees." This is where the learned single Judge fell in error as the concessions were and are clearly to and for the benefit of the specified relations of the retiring government servant and not for the retiring government servant. It would be pertinent to note in this behalf that the allotment of the government residential accommodation is to and in the name of the specified relation and not that of the retiring government servant, ft is also not a condition of the allotment that the retiring government servant must continue to reside in it or that the allotment would be limited to the period of his stay therein, or his death, as the case may be.
10. Seen from another angle, if the concession of out of turn allotment, is construed as one to and for the retiring government servant, it would clearly stand out as violative of the equality clause of Article 14 of the Constitution, as in the matter of allotment of government residential accommodation to retiring government servants, it would lack the requisite rational basis for differentiation between retiring government servants having specified relations in government service and these not having such relations in government service inasmuch as the consideration of not rendering "the government employee shelterless" would he equally applicable to both categories. The learned single Judge thus viewed the issue from a wholl v erroneous premises,
11. The other fault found with the im-puoned policy of January 30, 1989 (Annenure P-5) was that it placed goverment servants in separate categories, namely, those retiring on or after February 28, 1989 and those who retired before February 28. 1989, but after June 9. 1987, and this categorisation, it was said, was artificial and arbitrary.
12. No legal infirmiy can however, be attributed to suchs categorisation as it is inherent in the situation that whenever terms of such concessions are proposed to be modified or cancelled from any particular date, these seeking them would fall in different categories one before and the other after the specified date, as for any modification some cut off date would have to be fixed,
13. Further it must be appreciated that there is no vested right in a government servant for allotment of government residen-tial, accommodation, such allotment not being, part of their conditions of service. It is merely a privilege extended to them in terms, of the relevant rules or instructions issued in, this behalf. This being so, if the Chandigarh Administration was competent to gram, it is equally empowered to modify or even cancel such privilege. In the present case, as it happens, the change in the policy brought about by the impugned order of January 30, 1989 (Annexure P-5) is founded upon very valid considerations as spelt out in the letter of the Home Secretary of June 10, 1987 (Annexure P-4),and what is more the situation warranting such change, as was stated at the Bar, has since been further compounded by the waiting period for 'in turn' allotment of some categories of houses not being as much as over twenty years. Such being the circumstances the concession of out of turn allotment to specified relations of a retiring government employee even after not less than three years joint residence with the retiring government servant cannot, indeed but be looked upon us very valuable and significant, when regard is had to the fact that it enables a government employee with only three years service to become eligible for allotment of government residential accommodation whereas others not being so related to a retiring government servant may have to await their turn for allotment for over two decades.
14. Further, denial of out of turn allotment to specified relations of a retiring government servant, if he or any member of his family owns a house in Chandigarh, S. A.S. Nagar or Panchkula can be no means be looked upon as an arbitrary or unreasonable condition keeping in view the acute shortage of government residential accommodation in Chandigarh and there being such a long waiting period for its allotment rather it deserves to be construed as eminently reasonable.
15. Faced with this situation, Mr. Arun Jain counsel for the respondent sought to question the validity of the impugned order of January 30, I989-, (Annexure P-5) on the ground that it had been issued by Home Secretary and not the competent authority, namely, the Chief Commissioner, This % indeed a contention that cannot stand scrutiny as a plain reading of the impugned order would show that it had been issued by the Administrator of the Union Territory of Chandigarh.
16. Taken up next, was the wholly untenable plea that the impugned order suffered from the vice of unreasonableness, as before the policy thereunder came into effect, the concerned retiring government, employees were not given an option to seek retirement before the cut off date. It is not understandable how the question of such option arises. At any rate the new policy order was passed a month before it came into effect and it was also published a fortnight earlier. There is no material on record to suggest that any retiring government employee had ever sought retirement before his due date on this account or that he had been refused permission to retire.
17. Equally devoid of merit was the contention of the other counsel Mr. S. P. Sharma, appearing as Intervener who sought to question the validity of the impugned order on the ground that it was retrospective in effect, inasmuch as in terms thereof, it is only government employees who had been appointed and were residing with the retiring government servants before 1986, who would have been eligible for the concession thereunder on Febryary 28, 1989. Such a consequence cannot fasten any illegality upon the impugned order particularly in the context of the order having been issued on January 30, 1989 and made effective from February 28, 1989 i.e. a month later.
18. Before parting with this matter it may be mentioned that the judgment of the learned single Judge makes reference to some judicial precedents pertaining to the ambit and scope of Article 14 of the Constitution. None of these were, however, adverted to, for support by any counsel appearing before us and rightly too, as a reading thereof, would reveal that none could be read to advance the contentions canvassed by the writ petitioners.
19. We consequently hereby uphold as legal and valid the impugned order of January 30, 1989, (Annexure P-5) and set aside the judgment of the learned' single Judge. This appeal is, thus, accepted. There will, however, be no order as to costs.
20. While disposing of this matter, we cannot but endorse the adverse remarks made by the learned single Judge against the then Home Secretary of the Chandigarh Administration Shri R. N. Prashar, brandishing his conduct as "undesirable and unbecoming of a highly placed public servant" and consequently direct that these remarks be conveyed to him through the Chief Secretary, Haryana and also be placed on his service record.
21. Appeal allowed.