1. Shri K. K. Kaushik, ACP/Special Cell, the applicant herein, mutually exchanged the government quarter allotted to him with the one allotted to his son-in-law. He vacated the exchanged quarter before expiry of two years. The respondents in view of the applicant vacating the exchanged quarter allotted to him, refused to sanction house rent allowance (HRA) and further debarred him for allotment of government accommodation for the current year under the provisions of Standing Order (SO) No. 3/2006, vide order dated 12.6.2006. The two representations made by the applicant against the order aforesaid were rejected vide orders dated 13.7.2006 and 17.11.2006. These are the orders that have been challenged by the applicant in this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985.
2. Whereas Shri L. R. Khatana, the learned Counsel representing the applicant, in his endeavour to set aside the impugned orders would primarily urge that the SO No. 3/2006 (Annexure-D) under which the impugned orders have been passed could not be issued in exercise of powers vested under Sections 19 and 27 of the Delhi Police Act, 1978 (hereinafter to be referred as the Act of 1978) under which alone the said SO is purported to have been issued and that being so, the impugned orders could not be passed withholding in particular the HRA admissible to the applicant, Shri Ajesh Luthra, the learned Counsel representing the respondents, joins issues on the aforesaid contention of the learned Counsel, and further contends that the applicant is estopped from raising the plea as mentioned above due to his act and conduct, and further that this Tribunal may not interfere and set aside the impugned orders in the facts and circumstances of the case.
3. Before we may evaluate, comment upon and determine the controversy involved in the case, as mentioned above, it would be useful to give brief matrix of facts culminating into filing of the present Application.
4. The applicant joined Delhi Police as Sub Inspector in 1969 and was promoted as Inspector in 1987, and further promoted as Assistant Commissioner of Police on 8.9.2004. At the time when the Application was filed he was posted in Special Cell (CSS), P.S. Chanakyapuri, New Delhi. Quarter No. 32, ASI Type, Ashoka Police Lines was allotted to the applicant in the year 1979 while he was holding the post of Sub Inspector in Delhi Police. On 24.2.2006 the said quarter was exchanged by him with Shri Rajesh Sharma, Sub Inspector, who is his son-in-law, and consequent to mutual exchange, flat No. H-8, Type-II, Teen Murti Compound was allotted to the applicant. This mutual exchange was approved by the department vide order dated 24.2.2006 (Annexure-X). The applicant occupied the exchanged quarter and lived there till 31.5.2006. It is the case of applicant that due to compelling family circumstances beyond his control, he vacated the exchanged quarter on 31.5.2006. In consequence of his vacating the exchanged quarter, HC Vinod Kumar was allotted the said quarter, but the payment of HRA admissible to the applicant was withheld for a period of two years in purported exercise of powers vested with the department vide SO No.3/2006 (Annexure-D). It is the case of the applicant that while withholding HRA no opportunity was given to him to explain his position. It is further the case of the applicant that on receipt of orders aforesaid which have been styled as arbitrary, illegal and without authority, he made representation dated 19.6.2006 requesting therein for rescinding/review of the orders as per Annexure-A, which was, however, rejected in a mechanical manner without application of mind. On receipt of the order aforesaid the applicant came to know that the Standing Order has been framed on the basis of instructions issued by the Ministry of Home Affairs vide order 17.11.1968. He applied for a copy of the said order under the Right to Information Act, 2006.
Thereafter, the office of PIO of the office of respondents intimated the applicant vide letter dated 19.10.2006 that the required document was not traceable in the Police Headquarters despite sincere efforts.
Constrained, the applicant made yet another representation dated 2.11.2006 to the Commissioner of Police, which too was rejected. On the facts as mentioned above, it is the case of the applicant that the guidelines contained in SO Annexure-D are not applicable to his case.
The said SO is stated to have been issued under exercise of powers vested under Sections 19 and 27 of the Act of 1978, but provisions of the Act referred to above would nowhere provide for framing SO such as No. 3/2006 at Annexure-D, and that Section 19 specifically provides for framing of regulations which should be as per the provisions of the Act and not inconsistent with any other law for the time being in force. It is the case of the applicant that neither by virtue of provisions of Section 19 nor those of Section 27 of the aforesaid Act, SO No. 3/2006 (Annexure-D) could be framed. The said SO is thus stated to be against the rules beyond competence of the authorities, as not admissible under either the provisions of Section 19 or Section 27 of the Act of 1978.
5. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing counter reply, contested the cause of the applicant. The applicant, it is averred, was in possession of Delhi Police Pool Government quarter No. 32, Type-II, Ashoka Police Lines, and the aforesaid quarter was mutually exchanged with Government quarter No. H-8, Type-II, Teen Murti Compound, New Delhi which was in possession of SI Rajesh Sharma, his son-in-law. The mutual exchange was allowed vide order dated 24.2.2006 under the provisions of para XXVI of SO No. 3/2006 with the condition that the applicant would not vacate/surrender the quarter for a period of two years from the date of mutual exchange. The applicant had also submitted an undertaking at the time of submitting request for mutual exchange. He collected the occupation slip of the mutually exchanged quarter and occupied the same on 10.3.2006, but he vacated the quarter allotted to him in exchange on 31.5.2006. The applicant submitted a representation dated 4.7.2006 to the Commissioner of Police, Delhi against order dated 12.6.2006, which was examined at length in the light of rules/instructions and was rejected. The applicant was duly informed of the rejection of his request. He, however, submitted yet another representation dated 3.11.2006 which was again examined at length and rejected vide order dated 17.11.2006. On the applicant vacating the quarter obtained by him in mutual exchange, the same was allotted to another person on waiting list vide order dated 12.6.2006. It is averred that the applicant was fully aware of the provision/rules of SO No. 3/2006 and yet vacated the mutually exchanged quarter wilfully at his own, whereas he could not vacate the quarter for a period of two years.
6. We have heard the learned Counsel representing the parties and with their assistance examined the records of the case.
7. SO No. 3/2006 (Annexure-D) came into being on 3.2.2006 in pursuance of recommendations of the Police Commission contained in para 10 of their report in Chapter XIV read with Government of India, Ministry of Home Affairs letter No. 25/70(DPG-14)P.I. dated 17.11.1968 and powers vested under Sections 19(c) and 27 of the Delhi Police Act, 1978 (hereinafter to be referred as the 1978 Act), for allotment of all categories of residential accommodation available at the disposal of Delhi Police. Insofar as the Government of India, Ministry of Home Affairs letter dated 17.11.1968 is concerned, the same has not been traced and is, therefore, not available with the respondents till date, but there will be no need to postpone the case with a view to trace out the said letter, as the point referred to above has been debated exclusively on the basis of provisions of Sections 19(c) and 27 of the 1978 Act. The learned Counsel representing the applicant, in our view, has rightly not insisted upon that the respondents may produce letter dated 17.11.1968, presumably for the reason that if the impugned order may be sustained on the strength of other provisions mentioned therein, production of letter dated 17.11.1968 and its non applicability and/or lack of jurisdiction to deal and deny HRA, may be of no consequence.
Section 19 of the Act of 1978 deals with framing of regulations for administration of the police. Subject to orders of the Administrator, the Commissioner of Police may make regulations not inconsistent with the Act or any other law for the time being in force with regard to the following items/subjects: (a) regulating the inspection of the police force by his subordinates; (b) determining the description and quantity of arms, accoutrements, clothing and other necessaries to be furnished to the police; (c) prescribing the places of residence of members of the police force; (d) for institution, management and regulation of any police fund for any purpose connected with police administration; (e) regulating the distribution, movements and location of the police; (f) assigning duties to police officers of all ranks and grades, and prescribing the manner in which, and the conditions subject to which they shall exercise and perform their respective powers and duties; (g) regulating the collection and communication by the police of intelligence and information; (h) generally, for the purpose of rendering the police efficient and preventing abuse or neglect of their duties.
Section 27 deals with occupation of and liability to vacate premises provided for police officers. The same reads as follows: (1) A police officer occupying any premises provided by the Commissioner of Police for his residence shall occupy the same subject to such terms and conditions as may, by general or special order, be specified by the Commissioner of Police; and notwithstanding anything contained in any law for the time being in force, vacate the same on his ceasing to be a police officer or whenever the Commissioner of Police or any officer authorised by the Administrator in this behalf considers it, for reasons to be recorded in writing, necessary and expedient to require him to do so.
(2) If any person who is bound or required under Sub-section (1) to vacate any premises fails to do so, the Administrator or the officer authorised in this behalf by the Administrator may order such person to vacate the premises and may direct any police officer with such assistance as may be necessary to enter upon the premises and remove therefrom any person found therein and to take possession of the premises and deliver the same to any person specified in the direction.
8. SO No. 3/2006, as per its nomenclature, is for allotment, occupation, retention, vacation, eviction and regularization of residential accommodation of Delhi Police Pool. It applies to all existing residential accommodation owned, requisitioned, hired, acquired or placed at the disposal of the Police Department by the Directorate of Estates or any other authority, viz., DDA and Government of NCT of Delhi etc., or taken on lease for residential purposes by the competent authority and such accommodation as may be placed at the disposal of the department from time to time and constructed by the department in future. 'Allotment' has been defined under Clause IV of the SO to mean the grant of licence to occupy a residence on the charge of the Delhi Police in accordance with the provisions of the SO. The SO deals with classification of residence; nomination of house allotment officers; allotment of GO's accommodation; allotment of police pool accommodation; allotment subject to public interest; earmarking of accommodation essential for duty posts; reservation of vacant residences for certain category; procedure for occupation of residential accommodation; maintenance of waiting list; out of turn allotment; allotment of quarters to eligible wards/spouse of an allottee in death/retirement cases; non-acceptance of allotment/failure to occupy the allotted residence; validity of allotment; allotment on vacation; eviction proceedings; lodging of DD entry of vacation/clearance of outstanding dues; transfer to non-family stations; vacation/eviction on deputation to ineligible offices; death/dismissal/removal/retirement/resignation & consequential action; provisions relating to the realization of licence fee; personal liability of the officer for payment of licence fee till the residence is vacated; surrender of accommodation and period/notice; change of residence; change of residence in the event of death of a member of the family; mutual exchange of residence; maintenance of residence; sharing of residence; unauthorised construction/structure; subletting; keeping of animals; overstayal in residence after cancellation of allotment and charging of damage charges; continuance of allotment made prior to the issue of the SO; and interpretation and relaxation of the SO. Insofar as the mutual exchange dealt with in Clause XXVI is concerned, the same reads as follows: Govt. servants to whom residences of the same type/category have been allotted under the S.O. may apply for permission for mutual exchange of their residences. Such requests shall be granted at the discretion of the Allotment Officer. The mutual exchange of Govt.
Qtr. shall be allowed subject to the condition that both the officers will not surrender and vacate the Qtr. for a period of two years from the date of mutual transfer. In case, any of the allottee surrenders/vacates his/her mutually exchanged Govt. Qtr. prior to the completion of two years he shall not be granted House Rent Allowance for the remaining period from the date of surrender/vacation of the Govt. Qtr. till the completion of two years from the date of mutual exchange.
9. Perusal of Clause (c) of Section 19 of the 1978 Act would manifest that the Commissioner of Police may make regulations with regard to prescribing the places of residence of members of police force. The contention raised by Shri Khatana, learned Counsel representing the applicant that SO No. 3/2006 could not be framed in exercise of powers vested with the Commissioner of Police under Section 19 may appear to be correct to the limited extent that prescribing places would not include conditions for occupying the accommodation allotted to a police officer, but Clause (c) of Section 19 has to be read with provisions contained in Section 27, which in turn provides that a police officer occupying any premises provided by the Commissioner of Police for his residence would occupy the same subject to such terms and conditions as may, by general or special order, be specified by the Commissioner of Police. Even if the contention of the learned Counsel is accepted to the extent that Clause (c) of Section 19 deals only with prescribing places which would mean identifying the places of residence of members of police force, even then Section 27 independently in itself would clearly mean that the conditions for police officer occupying the premises can be laid by a general or special order. SO No. 3/2006, in our considered view, is a special order dealing with all aspects of allotment, and there could not be any bar for framing the said SO.Ample power exists by virtue of provisions of Section 27 to lay down conditions for occupying any premises by virtue of a general or special order. Confronted with the position aforesaid, the learned Counsel contends that the conditions of occupation is one thing, whereas consequences thereof such as stoppage of house rent allowance, which is a condition of service of the applicant could not be imposed. It is urged that it is the right of applicant to receive house rent allowance in case he is not occupying government accommodation and such a right granted to the applicant by virtue of service rules could not be taken away in the garb of conditions laid down in SO No. 3/2006. In his endeavour to show that house rent allowance is a right of the applicant emanating from service conditions and is not a mere concession, the learned Counsel relies upon the following observations of the Hon'ble Supreme Court in State of Karnataka and Anr. v. Mangalore University Non-Teaching Employees' Association and Ors.
True, as pointed out by the Division Bench, HRA and CCA, which are components of total salary undoubtedly form part of conditions of service and it may not be accurate to describe them as concession A Single Bench of the Karnataka High Court had held that HRA and CCA is a concession. This view of the Single Bench was, however, overruled by a Division Bench of the same High Court holding that HRA and CCA are not in the nature of concession. The observations of the Hon'ble Supreme Court reproduced above would indeed show that HRA and CCA are components of total salary and form part of conditions of service, and thus may not be described as concessions.
10. We have given our thoughtful consideration to the contention raised by the learned Counsel but find no merit therein. In our considered view, occupation of government quarter is also a condition of service.
Every government employee may not be eligible as per his conditions of service to occupy government house. Surely, if an employee is eligible to occupy government house, the conditions thereof can well be made.
Ample power is available with the authorities to make general or special orders for occupation of government house as would be clearly made out from Sub-section (1) (a) of Section 27 of the 1978 Act. The mere fact that violation of provisions of exchange as stipulated in SO No. 3/2006 may result in negating the benefit of another condition of service would not mean that such consequences which are, after all, related to occupation of government accommodation, cannot be made.
Eligibility to draw HRA if a government servant is entitled to occupy government accommodation and chooses not to occupy the same may not be a concession, as held by the Hon'ble Supreme Court, nonetheless the same does not flow from any service rule. The learned Counsel for applicant has himself apprised us that eligibility for HRA emanates from recommendations of the Fifth Central Pay Commission. He has handed over to us during the course of arguments copy of government orders dated 3.10.1997 on CCA/HRA etc. A perusal of the same would manifest that consequent upon decision taken by the government on the recommendations of the Fifth Pay Commission relating to HRA vide Ministry's resolution No. 50(1)/IC/97 dated 30.9.1997, the President decided for modification of the Ministry's OM dated 27.11.1965 and CCA/HRA to Central Government employees were made admissible as mentioned in the decision aforesaid. The right to draw HRA in case of non-occupation of government house does not flow from any statutory rules. By laying down conditions of occupation/exchange and providing consequences of violations by virtue of SO No. 3/2006, the respondents have not violated any fundamental or statutory right of the applicant.
That being so, we do not find any merit in the contention of the learned Counsel that prescription of consequences touching the right of applicant to get HRA could not be made by virtue of provisions contained in Section 27 of the 1978 Act.
11. In view of our observations as made above, there would be no need to elaborately discuss the judicial precedents relied upon by the learned Counsel representing the applicant. However, in all fairness to the counsel, we may mention that reliance has been placed by him upon a judgment of the Hon'ble Supreme Court in State of T.N. and Anr. v. P.Krishnamurthy and Ors. wherein it has been held that subordinate legislation can be challenged, amongst other grounds, on the ground of lack of legislative competence to make the subordinate legislation as well, and further that the court while considering the validity of the subordinate legislation will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. It has also been held that where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy, but where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity. The learned Counsel also relied on the observations made by the Hon'ble Supreme Court in Additional District Magistrate (Rev.) Delhi Admn. and Ors. v. Siri Ram and Ors. that 'It is a well-recognised principle of a statute that conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto.' Reliance has also been placed by the learned Counsel on State of Punjab and Anr. v. Devans Modern Breweries Ltd. and Ors.
observed that 'It is a well-settled principle of law that a thing which cannot be done directly cannot be done indirectly.' Reliance has been placed on yet another judgment of the Hon'ble Supreme Court in Lohia Machines Ltd. and Anr. v. Union of India and Ors.
wherein it has been observed that 'The proposition that the rule-making authority does not have any power to encroach upon any substantive provision in the statute appears to be beyond dispute.' 12. There being no substance whatsoever in the only contention of the learned Counsel as noted above apart, we are of the view that in the facts and circumstances of the case, the applicant does not deserve any relief. It is not necessary for the High Court in its writ jurisdiction, which power the Tribunal too has, to interfere in every case where there is violation of fundamental or statutory right. After introduction of the Constitution of India, it has been consistent view for some time that when court may find infringement of a fundamental right a writ cannot be refused on the ground that it involves determination of disputed questions of fact, delay or laches, conduct of a party and reasons asjuden generis. However, insofar as second part of Article 226 is concerned, i.e., issuing writ for any other purpose, it has always been in the discretion of the High Court to interfere or not, depending upon the facts and circumstances of each case. The law that the High Court must necessarily interfere when it is a case of violation of fundamental rights whatever be the facts of the case, has been watered down by number of judgments of the Hon'ble Supreme Court.
Reference in this connection may be made to decisions of the Hon'ble Supreme Court in Durga Prashad v. The Chief Controller of Imports and Exports , wherein it was held that even where there is an allegation of breach of fundamental right, the grant of relief is discretionary, even though such discretion has to be exercised judicially and reasonably, and Tirlokchand Motichand v. H.B. Munshi wherein, while dealing with the fundamental rights of a citizen and interference by the Supreme Court by virtue of Article 32 of the Constitution, which deals with enforcement of fundamental rights only, it was held that 'the extent or manner of interference is for the Court to decide. Interference must always depend upon the facts of each case.' In The Moon Mills Ltd. v. M. R. Meher AIR 1967 SC 1450 it has been held by a Constitution Bench of the Hon'ble Supreme Court that 'writ is legally a matter of sound discretion and would not be issued if there be such negligence or omission on the part of the applicant to assert his right as taken on conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party.' Writs, insofar as they are concerned with enforcement of other rights, i.e., second part of Article 226, are not issued as a 'matter of course' (Halsbury's Laws of England, Hailsham Edition, Vol.9, paras 1480 and 1481). In Shangrila Food Products Ltd. v. Life Insurance Corporation of India it was held that 'the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. The jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.' In a Division Bench Judgment of the Punjab & Haryana High Court in Municipal Corporation, Amritsar v.Jagdamba Dutt 2000 (3) SCT 19 while dealing with as to whether the High Court must interfere where it may be a case of infringement of fundamental rights or other statutory rights, reference of the Hon'ble Supreme Court's judgments referred to above has been made and a conclusion arrived that if the facts and circumstances of the case may not warrant interference, writ can be refused even though it may be a case of infringement of fundamental right or violation of any statutory right. The facts of the case aforesaid reveal that the petitioner in the writ had retired as an electrician and did not vacate the house for a long time even after his retirement. His provident fund, gratuity and leave encashment were withheld on the plea of adjustment of the amount that he had to pay by way of house rent/penalty for non-vacation of the government quarter allotted to him when he was in service. Aggrieved, the petitioner filed writ in the High Court which was allowed by the Single Bench. In the Letters Patent Appeal filed by the Municipal Corporation, the judgment of the learned Single Bench was set aside.
The entire case law on the subject for and against as to whether writ must necessarily be issued in all circumstances was threadbare discussed and the petitioner was declined relief for his contumacious conduct in not vacating the government quarter years after his retirement. We may mention here that the right of the petitioner to get provident fund, gratuity and leave encashment was by virtue of provisions of the statute. Concededly, he was not paid on any of the items mentioned above and even though, it was statutory right of the petitioner to get provident fund etc., the same was declined. In the present case, eligibility of the applicant to get HRA may be a condition of service as held by the Hon'ble Supreme Court, but such a right does not flow to the applicant by virtue of provisions of any statute. By the conduct of the applicant he, in our considered view, does not deserve any relief. The applicant exchanged the house allotted to him with his son-in-law. At the time when he sought exchange, he gave an undertaking to abide by the rules.
13. Mutual exchange of government quarters is allowed subject to the condition that both the officers will not surrender and vacate the quarters for a period of two years from the date of mutual transfer. In case, any of the allottee surrenders/vacates his mutually exchanged quarter prior to the completion of two years, he shall not be granted HRA for the remaining period from the date of surrender/vacation of the quarter till the completion of two years from the date of mutual exchange. The applicant was fully aware of the conditions permitting mutual exchange of the government quarters. He submitted an undertaking in this connection at the time of submitting his request for mutual exchange. He collected the occupation slip of the mutually exchanged quarter and occupied the same on 10.3.2006. Within a period of less than three months, he vacated the house that came to him in mutual exchange with his son-in-law. It may be recalled that the applicant was residing in Quarter No. 32, Type-II, Ashoka Police Lines, eversince he was posted as Sub Inspector. He exchanged the house with his son-in-law, even though he might have been entitled to a better category of accommodation when he occupied the position of ACP. It can well be presumed that the house occupied by him which he exchanged with his son-in-law must have had some advantages, be it in the matter of area, quality of construction or the location. The applicant chose to exchange the house with his son-in-law, which further proves that he wanted his son-in-law to take a better house occupied by him, which in turn would certainly mean that someone higher in seniority than the son-in-law of the applicant was deprived to occupy the house that the applicant exchanged with him. It may be true that the mutually exchanged houses are of the same type. At one stage, during the course of arguments, we wanted to know the special features/advantages that may be available with the house occupied by the applicant. Shri Luthra informed us after verification that even though in the matter of area or quality of construction there may not be much difference, but the house occupied by the applicant which he exchanged with his son-in-law has far better ambience than the one occupied by his son-in-law. It clearly emerges from the facts and circumstances of this case that the applicant by this mutual exchange only wanted to confer benefit upon his son-in-law to which he might not have been otherwise entitled. In Delhi which is the capital of the country and where residential accommodation is in extreme scarcity and government employees are standing in long queue to occupy a house or a better category of house, the applicant by his design made his son-in-law jump the queue, thus depriving some eligible police officers higher in seniority to occupy a better house. This cannot be appreciated. The conduct of the applicant would not entitle him to the relief asked for by him. This Tribunal, in the facts and circumstances of this case and in consideration of the conduct of the applicant, would not like to interfere even if there was to be some substance in the first contention of the learned Counsel, as mentioned above.
14. Finding no merit in this Application, we dismiss the same, leaving, however, the parties to bear their own costs.