Delhi High Court
Awadesh Kumar Prajapati vs Govt. Of Nct Of Delhi on 28 August, 2014
Author: Rajiv Sahai Endlaw
Bench: Chief Justice, Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th August, 2014
+ LPA No.64/2014
AWADESH KUMAR PRAJAPATI ..... Appellant
Through: Mr. Bipin Jha & Mr. Nitin Jain, Advs.
Versus
GOVT. OF NCT OF DELHI ..... Respondent
Through: Mr. Aditya Madan, Adv.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. This intra-court appeal impugns the order dated 21.11.2013 of the learned Single Judge of this Court of dismissal of W.P.(C) No.1598/2013 preferred by the appellant.
2. The appellant, who claims to be 100% visually impaired is working as a teacher of Hindi language and posted at New Police Lines, GTB Nagar, Kingsway Camp, Delhi. The appellant by virtue of his employment has been allotted a residential flat at Timarpur. The appellant, claiming that the residential accommodation allotted to him is at a distance of 4/5 kms from the school in which the appellant is posted and that the appellant suffers LPA No.64/2014 Page 1 of 12 inconvenience and risk owing to his disability in travelling the said distance and further claiming that his wife is also physically disabled to the extent of 60% and is a student of a school, also located in the GTB area, applied for change of residential accommodation to Model Town and upon such request for change being rejected, filed the writ petition from which this appeal arises for a direction to the respondent to transfer the allotment of residential accommodation to the appellant from at Timarpur to at Model Town, Delhi.
3. The respondent filed a counter affidavit (in the writ petition) inter alia pleading that the residential flat aforesaid at Timapur was allotted to the appellant not as per his seniority / priority but on ad-hoc and emergent basis under the discretionary quota of the Director (Allotment), taking into consideration the difficulties being faced by the appellant. It was pleaded that the request for change of flat from Timarpur to Model Town could not be considered only on the basis of seniority / priority of the appellant particularly when persons having seniority / priority much higher than the appellant were still awaiting allotment; it was yet further pleaded that the appellant was not entitled to any relief because the residential flat at Timarpur allotted to the appellant has been sublet by the appellant and proceedings for cancellation of the allotment of the said flat were also underway.
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4. The learned Single Judge dismissed the writ petition, finding/ observing/ holding, i) that the Court in exercise of jurisdiction under Article 226 cannot give a direction which would result in contravention of the Government of Delhi Allotment of Government Residence (General Pool) Rules, 1977; ii) that there is no good reason for the appellant not to wait in the queue for change of residential accommodation allotted to him; iii) that the appellant cannot link allotment of residence to him to the place of his posting as a matter of right; if the appellant is transferred to another school, he cannot on this ground seek change of accommodation unless he is entitled thereto as per the Rules; iv) that the residential accommodation at Timarpur already allotted to the appellant cannot be said to be far from the place of posting of the appellant; v) that while the distance between Timarpur and the place of posting of the appellant is stated to be 4/5 kms, the distance between Model Town (where the appellant is seeking accommodation) and the place of posting of the appellant is stated to be 1½ kms and there is not much difference between the two; and, vi) that according to the respondent, no accommodation at Model Town is available for being allotted to the appellant.
5. Aggrieved from the aforesaid, this appeal was filed, notice whereof was issued. We have heard the counsels for the parties.
LPA No.64/2014 Page 3 of 12
6. We have at the outset enquired the status of the proceedings stated to have been initiated for cancellation of the residential accommodation allotted to the appellant at Timarpur on the ground of subletting, being of the opinion that if the said allotment itself has been cancelled and the appellant has been found to be guilty of subletting, he would not be entitled to any relief in these proceedings as well. While the counsel for the appellant denies that there was any subletting and states that the appellant had merely temporarily allowed one of his friends to reside in the Timarpur accommodation, the counsel for the respondent states that the said proceedings were dropped because the subsequent inspection of the Timarpur premises revealed that the appellant had removed the person to whom the residential accommodation at Timarpur had earlier been sublet and the appellant was found to have himself occupied the said accommodation.
7. We have next enquired, whether any residential accommodation at Model Town is available for allotment to the appellant. While the counsel for the respondent states that there is no accommodation available, the counsel for the appellant has handed over the information dated 30.05.2014, made available to him in response to an RTI query and as per which, there is accommodation available for allotment at Model Town.
LPA No.64/2014 Page 4 of 12
8. The counsel for the respondent has also handed over a copy of the Office Memorandum dated 31.03.2014 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India laying down the guidelines for providing certain facilities in respect of persons with disabilities who are already employed in Government, for efficient performance of their duties and has contended that the allotment of accommodation to the appellant is in accordance therewith.
9. A perusal of the record discloses:
(a) that the appellant had earlier filed W.P.(C) No.1952/2013 with the grievance that the respondent Govt. of NCT of Delhi, qua allotment of pool accommodation, was clubbing the cases under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with the General Medical category cases for special allotment and with the further grievance that the Rule of special allotment under the General Medical category, of the allotment being of one Type below entitlement accommodation, was being applied to allotment to persons with LPA No.64/2014 Page 5 of 12 disability also; the said writ petition was disposed of by a Division Bench of this Court vide order dated 13.05.2013, directing:
(i) that there should be a separate clear reservation of 3% for persons with disability, qua allotment of pool accommodation;
(ii) that the entitlement of persons with disability to residential accommodation cannot be clubbed with the discretionary allotment on medical ground;
(iii) that there could be no question of allotment of one category below entitlement accommodation to persons with disability;
and with a direction to the respondent to amend the rules to bring them in conformity with the findings of the Court;
(b) that the appellant was allotted the residential accommodation at Timarpur vide letter dated 21.05.2012;
(c) that the appellant has applied for change of Timarpur accommodation for residential accommodation at Model Town, on 29.01.2013;
LPA No.64/2014 Page 6 of 12
(d) that the request of the appellant for change of accommodation was rejected vide letter dated 14.03.2013 on the ground that the appellant had not completed six months from the date of allotment of residential accommodation at Timarpur inasmuch as the appellant had taken possession of the residential accommodation at Timarpur on 15.09.2012;
(e) that it was the case of the respondent before the learned Single Judge that it has only eight residential flats at Model Town;
(f) that it was further the case of the respondent before the learned Single Judge that as per the Government of Delhi Allotment of Government Residence (General Pool) Rules, 1977, the request for change of flat has to be considered on the basis of date of priority and along with the other applicants and that the appellant will get the change as and when his seniority is covered; and,
(g) that the documents handed over by the appellant to show that accommodation at Model Town is indeed available do not categorically show as to how much residential accommodation at LPA No.64/2014 Page 7 of 12 Model Town is available for allotment to the appellant inasmuch as it appears that the accommodation is department wise.
10. On consideration of the aforesaid material, we are unable to know whether the respondent has complied with the direction contained in the order dated 13.05.2013 in W.P.(C) No.1952/2013, of reserving 3% of the residential accommodation available, for persons with disability. The counter affidavit of the respondent filed before the learned Single Judge is quiet in this respect and the counsel for the respondent also is unable to inform us in this regard. Needless to state that if the respondent till date has not complied with the said direction with which it was to comply within three months, the respondent at least now needs to amend the rules qua allotment of residential accommodation to bring the same in conformity with the directions issued by this Court in order dated 13.05.2013. The learned Single Judge has not dealt with the said contention of the appellant.
11. As far as the reasoning given by the learned Single Judge, of there being hardly any difference between the distance of 1½ kms of the residential accommodation at Model Town sought by the appellant from the place of posting of the appellant at New Police Lines, GTB Nagar, Kingsway Camp, LPA No.64/2014 Page 8 of 12 Delhi and the distance of 4/5 kms from the residential accommodation presently allotted to the appellant at Timarpur to GTB Nagar is concerned, though the said difference may not be much for a person with all faculties functioning but the test to be applied is of a person with 100% visual impairment. The learned Single Judge does not appear to have seen the matter from the said perspective. For a person with 100% visual impairment, the difference between 1½ kms. and 4/5 kms. is indeed substantial and worth remedying. The way visually impaired people travel/work, is different than the way sighted people travel. Most training for the visually impaired traveller focuses on learning routes to get from point A to B, which is a skill utilised in orientation and mobility training. To follow a route, visually impaired travellers break their journey into shorter stages and orient themselves within the journey a greater number of times and relating it to the contextual information about points of interest along the route. When sighted people look at a map, they see the whole map i.e. the total; however, the visually impaired take only pieces from a total. If a visually impaired person walks by a bakery and the door is not open and he does not smell it, he does not know it is there. It cannot also be forgotten that there is a great amount of pressure on the visually impaired to be independent on their journey and seeking aid from another human is the last LPA No.64/2014 Page 9 of 12 resort. We find that providing ways of gathering contextual information about points of interest along a route is a subject of research for improving the living conditions of visually impaired particularly in urban orientation. The Supreme Court also recently in Deaf Employees Welfare Association v. Union of India (2014) 3 SCC 173 noticed the unprecedented increase in the commutation time between the residence and place of work and which affects the work environment in the office adversely as the employee spends much of their energy in commuting and observed that in case of persons with disability the situation is more grave.
12. Similarly, though the learned Single Judge is right in reasoning that the appellant can be granted change of accommodation only on maturity of his date of priority but again, ignoring that the date of priority of the appellant, a person with disability, cannot be at par with the date of priority of a person with all faculties functioning and especially when this Court had vide order dated 13.05.2013 in the petition earlier filed by the appellant already directed reservation of 3% of the pool accommodation for persons with disability. The date of priority of a person with disability has to be as per the said 3% category. The respondent appears to have not made any such reservation and appears to be treating a person with disability at par with a person with all human faculties LPA No.64/2014 Page 10 of 12 functioning and which, not only is not permissible in law but is also contrary to the directions already issued by this Court in the order dated 13.05.2013. The request of the appellant, a person with disability, will have to be considered at par with the need / requirement of persons similarly situated as the appellant. We find that the Guidelines dated 31.03.2014 supra of the Ministry of Personnel, Public Grievances and Pensions also direct the Directorate of Estates to give preference to persons with disabilities for providing them accessible accommodation near their place of posting and for exemption of such persons from the rotational transfer policy.
13. For the aforesaid reasons, we are unable to agree with the reasoning given by the learned Single Judge and dispose of this appeal with the following directions:
(a) the respondent, if has not already complied with the directions contained in the order dated 13.05.2013 in W.P.(C) No.1952/2013 earlier preferred by the appellant, to immediately comply with the same within one month hereof;
(b) the case of the appellant for allotment of residential accommodation at Model Town be considered under the category LPA No.64/2014 Page 11 of 12 of 'Persons with Disability' and for whom reservation of 3% has already been directed to be made;
(c) if the appellant, on aforesaid consideration, is found entitled to residential accommodation at Model Town, the appellant be immediately allotted the said accommodation within two months herefrom;
(d) if upon aforesaid consideration, the appellant is not found eligible for change of accommodation, the appellant be informed of the same with reasons, again within two months herefrom;
(e) if no residential accommodation at Model Town is presently available inspite of the appellant being found entitled thereto, the appellant be allotted the said accommodation forthwith on the same becoming available.
No costs.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE AUGUST 28, 2014 'gsr' LPA No.64/2014 Page 12 of 12