Hari Kishore S/O Shri Shiv Charan Vs. Director General Indian Council - Court Judgment

Excerpt:
1. this matter has been heard in part on numerous dates and had been adjourned directing learned counsel for respondents to seek instruction from respondents on applicants request that since eight type-ii quarters are still vacant, whether applicant could be adjusted against one such quarter. shri b.s. mor, learned counsel for respondents pointed out that he has instructions to state that his request cannot be acceded to. in the circumstances, i proceed to decide the matter on merits.2. by present oa, challenge is made to order dated 10.2.2006 vide which allotment made earlier of quarter no. c-77 (type-ii), krishi vihar, new delhi was cancelled and allotted quarter no. a-106 (type-i), krishi vihar, new delhi. further vide said order, respondents gave him time upto 28.2.2006 to vacate the quarter failing which licence fee at damage rent is to be charged w.e.f. 01.3.2006.3. facts as stated are that applicant was appointed as peon on 26.4.2004. his farther, working earlier with icar as class-iv employee, was allotted a quarter no. c-77 (type-ii), krishi vihar, new delhi. he was living & staying with his father in this quarter and therefore did not claim any hra. his father attained the age of superannuation on 30.5.2005. in these circumstances, a request was made that said quarter be allowed and regularized in applicant's name. an undertaking was also furnished to abide by the terms & conditions for regularization of the said quarter. as per provision of fundamental rules applicable to respondents relating to allotment of quarters, he was entitled to allotment of government residential quarter on payment of normal licence fee on retirement of his father from service. applicant at present is eligible for type-i quarter but on payment of three times the normal licence fee, he can retain type-ii quarter allotted to his father. reference was made in this context to fr 45-a. on his request, a decision had been taken by competent authority of icar to regularize allotment of type-ii quarter in applicant's name and a note to this effect was made on 07.7.2005. pursuant thereto, on 28.7.2005 (annexure a-4) applicant herein was allotted said quarter no. c-77 (type-ii), krishi vihar, new delhi w.e.f. 01.6.2005 on terms & conditions specified therein, which inter alia provided that he would have to pay three times the normal licence fee w.e.f. 01.6.2005 till his turn comes for allotment of type-ii quarter, and water charges & staircase light charges however would be same as of normal allotment of type-ii. said terms & conditions were accepted and, therefore, vide order dated 10.8.2005 a sum of rs. 429/- p.m. was deducted from his salary towards special license fee etc. after about four months, all of a sudden respondents issued letter dated 16.11.2005 informing him that decision taken vide communication dated 28.7.2005 has been re-considered and said allotment stand cancelled. in lieu of said cancellation, another government accommodation being c-89 type-ii (top floor) was offered to him. it was stated that if said allotment was not acceptable, he was given option of type-i quarter being quarter no. a-105 (top floor). for this purpose, fifteen days time was allowed failing which damage rent was to be charged from him. he made representation and stated that it was not possible to change quarter and shift to top floor as his father was suffering from hernia and asthma. learned counsel pointed out that during the pendency of present proceedings, his father had been operated on 27.6.2006. it was also pointed out that earlier applicants father had been allowed quarter on top floor and thereafter allowed ground floor on health ground, after he made necessary representation in this regard. he had made several representations to re-consider his case on humanitarian ground also but no favourable result has been yielded. applicant pointed out that there was no shortage of type-ii quarters either at the time when he was allowed quarter in question or as on date as no such shortage exists. on the other hand, at present as many as seven type-ii quarters are vacant for allotment even on 24.7.2006, when an additional affidavit was made. details of quarters, which are lying vacant in same locality were also provided by applicant. misc. application no. 527/2006 was also preferred seeking stay from changing damage rent etc.4. respondents contested applicants claim stating that he has not approached this tribunal with clean hands. on the strength of letter dated 14.3.2006 he obtained status quo order though no such letter had been issued by respondents. moreover, applicant annexed certain note portion of file to substantiate his claim, which is not justified. he is entitled to government accommodation as per his entitlement under respondents rule relating to allotment of residence as well as fr & sr.order dated 10.2.2006 directing applicant to vacate quarter in question is legal and correct as per rules 28 (iii) of icar hqrs. (allotment of residences) rules 1981 and fr & sr, applicant was entitled to type-i accommodation only. however, keeping in view in mind about less demand of quarters and as per govt. of india rules permitting one higher type of quarter on payment of three times license fee, he was allowed to retain the said quarter vide order dated 28.7.2005. subsequently, on representation received from other employees, it was realized that they committed a mistake in granting him one type higher quarter. said mistake has now been ratified by issuing orders dated 16.11.2005 & 10.2.2006. applicants contention that he has been harassed by their action was controverted.5. applicant submitted his rejoinder as well as additional affidavit reiterating contentions raised vide oa. respondents have also filed their additional affidavit dated 21.7.2006 wherein it has been admitted that shri k.c. johsi, under secretary was allotted one type higher quarter than his entitlement as he has been transferred from dehradun.he was allowed type-v quarter in asian game village as a special case because no type-iv quarter was vacant and there was no application at that point of time for allotment of type-v quarter.6. i have heard learned counsel for parties and perused pleadings besides material placed on record carefully. it is not disputed that seven type-ii quarters, details of which have been furnished by applicant in his affidavit, are presently lying vacant and there is no claimant or application pending as on date seeking allotment of such quarters. it is also not in dispute that shri k.c. joshi has been allotted a quarter which is one type higher than his entitlement. it is further not in dispute that respondents have applied their mind and taken a conscious decision while issuing memorandum dated 28.7.2005 regularizing type-ii accommodation in favour of the applicant. in my considered view, mere submission of certain representation from some disgruntled employees could not be a ground to review & recall a conscious decision taken by authorities on an earlier occasion. if such course of action is allowed, there will no total chaos & an administrative decision would be reviewed on whims & fancies. it is not in dispute that under the provision of fr / sr, an employee is entitled to one type higher quarter on payment of special licence fee, which condition had been incorporated by respondents vide memo dated 28.7.2005, which in turn was accepted by the applicant. the basic aim and object behind such an action is that revenue should not be lost by keeping the quarter vacant. in the present case i am unable to agree with the contention raised by respondents that subsequent representation made by some officials who are not even the applicants seeking allotment of such quarters, could be a justified ground to review its earlier courcious decision as well as decision-making process.7. no other allegation has been placed on record against the applicant.same authority namely icar, when it allowed another official a higher type accommodation, is not justified to treat the applicant differently, particularly in the facts & circumstances of present case.otherwise it will amount to invidious discrimination, which is impermissible in law. why the authorities are coercing him to accept top floor, of the same type-ii, as reflected vide communication dated 16.11.2005 has not been explained. there appears to be some extraneous consideration behind such move, which has not been disclosed & clarified by the respondents.8. in the light of the discussion made hereinabove, i find no justification in respondents stand and accordingly communications dated 10.2.2006 as well as 16.11.2005 are quashed & set aside. the respondents are directed to adhere to their memorandum dated 28.7.2005 with all consequential benefits. accordingly, oa as well as ma are allowed. no costs.

Judgment:
1. This matter has been heard in part on numerous dates and had been adjourned directing learned Counsel for respondents to seek instruction from respondents on applicants request that since eight Type-II quarters are still vacant, whether applicant could be adjusted against one such quarter. Shri B.S. Mor, learned Counsel for respondents pointed out that he has instructions to state that his request cannot be acceded to. In the circumstances, I proceed to decide the matter on merits.

2. By present OA, challenge is made to order dated 10.2.2006 vide which allotment made earlier of quarter No. C-77 (Type-II), Krishi Vihar, New Delhi was cancelled and allotted quarter No. A-106 (Type-I), Krishi Vihar, New Delhi. Further vide said order, respondents gave him time upto 28.2.2006 to vacate the quarter failing which licence fee at damage rent is to be charged w.e.f. 01.3.2006.

3. Facts as stated are that applicant was appointed as Peon on 26.4.2004. His farther, working earlier with ICAR as Class-IV employee, was allotted a quarter No. C-77 (Type-II), Krishi Vihar, New Delhi. He was living & staying with his father in this quarter and therefore did not claim any HRA. His father attained the age of superannuation on 30.5.2005. In these circumstances, a request was made that said quarter be allowed and regularized in applicant's name. An undertaking was also furnished to abide by the terms & conditions for regularization of the said quarter. As per provision of Fundamental Rules applicable to respondents relating to allotment of quarters, he was entitled to allotment of government residential quarter on payment of normal licence fee on retirement of his father from service. Applicant at present is eligible for Type-I quarter but on payment of three times the normal licence fee, he can retain type-II quarter allotted to his father. Reference was made in this context to FR 45-A. On his request, a decision had been taken by competent authority of ICAR to regularize allotment of type-II quarter in applicant's name and a note to this effect was made on 07.7.2005. Pursuant thereto, on 28.7.2005 (Annexure A-4) applicant herein was allotted said quarter No. C-77 (Type-II), Krishi Vihar, New Delhi w.e.f. 01.6.2005 on terms & conditions specified therein, which inter alia provided that he would have to pay three times the normal licence fee w.e.f. 01.6.2005 till his turn comes for allotment of Type-II quarter, and water charges & staircase light charges however would be same as of normal allotment of Type-II. Said terms & conditions were accepted and, therefore, vide order dated 10.8.2005 a sum of Rs. 429/- p.m. was deducted from his salary towards special license fee etc. After about four months, all of a sudden respondents issued letter dated 16.11.2005 informing him that decision taken vide communication dated 28.7.2005 has been re-considered and said allotment stand cancelled. In lieu of said cancellation, another government accommodation being C-89 Type-II (top floor) was offered to him. It was stated that if said allotment was not acceptable, he was given option of Type-I quarter being quarter No. A-105 (top floor). For this purpose, fifteen days time was allowed failing which damage rent was to be charged from him. He made representation and stated that it was not possible to change quarter and shift to top floor as his father was suffering from Hernia and Asthma. Learned Counsel pointed out that during the pendency of present proceedings, his father had been operated on 27.6.2006. It was also pointed out that earlier applicants father had been allowed quarter on top floor and thereafter allowed ground floor on health ground, after he made necessary representation in this regard. He had made several representations to re-consider his case on humanitarian ground also but no favourable result has been yielded. Applicant pointed out that there was no shortage of type-II quarters either at the time when he was allowed quarter in question or as on date as no such shortage exists. On the other hand, at present as many as seven type-II quarters are vacant for allotment even on 24.7.2006, when an additional affidavit was made. Details of quarters, which are lying vacant in same locality were also provided by applicant. Misc. Application No. 527/2006 was also preferred seeking stay from changing damage rent etc.

4. Respondents contested applicants claim stating that he has not approached this Tribunal with clean hands. On the strength of letter dated 14.3.2006 he obtained status quo order though no such letter had been issued by respondents. Moreover, applicant annexed certain note portion of file to substantiate his claim, which is not justified. He is entitled to government accommodation as per his entitlement under respondents rule relating to allotment of residence as well as FR & SR.Order dated 10.2.2006 directing applicant to vacate quarter in question is legal and correct as per Rules 28 (iii) of ICAR Hqrs. (Allotment of Residences) Rules 1981 and FR & SR, applicant was entitled to Type-I accommodation only. However, keeping in view in mind about less demand of quarters and as per Govt. of India rules permitting one higher type of quarter on payment of three times license fee, he was allowed to retain the said quarter vide order dated 28.7.2005. Subsequently, on representation received from other employees, it was realized that they committed a mistake in granting him one type higher quarter. Said mistake has now been ratified by issuing orders dated 16.11.2005 & 10.2.2006. Applicants contention that he has been harassed by their action was controverted.

5. Applicant submitted his rejoinder as well as additional affidavit reiterating contentions raised vide OA. Respondents have also filed their additional affidavit dated 21.7.2006 wherein it has been admitted that Shri K.C. Johsi, Under Secretary was allotted one type higher quarter than his entitlement as he has been transferred from Dehradun.

He was allowed type-V quarter in Asian Game Village as a special case because no type-IV quarter was vacant and there was no application at that point of time for allotment of type-V quarter.

6. I have heard learned Counsel for parties and perused pleadings besides material placed on record carefully. It is not disputed that seven type-II quarters, details of which have been furnished by applicant in his affidavit, are presently lying vacant and there is no claimant or application pending as on date seeking allotment of such quarters. It is also not in dispute that Shri K.C. Joshi has been allotted a quarter which is one type higher than his entitlement. It is further not in dispute that respondents have applied their mind and taken a conscious decision while issuing memorandum dated 28.7.2005 regularizing type-II accommodation in favour of the applicant. In my considered view, mere submission of certain representation from some disgruntled employees could not be a ground to review & recall a conscious decision taken by authorities on an earlier occasion. If such course of action is allowed, there will no total chaos & an administrative decision would be reviewed on whims & fancies. It is not in dispute that under the provision of FR / SR, an employee is entitled to one type higher quarter on payment of special licence fee, which condition had been incorporated by respondents vide Memo dated 28.7.2005, which in turn was accepted by the applicant. The basic aim and object behind such an action is that revenue should not be lost by keeping the quarter vacant. In the present case I am unable to agree with the contention raised by respondents that subsequent representation made by some officials who are not even the applicants seeking allotment of such quarters, could be a justified ground to review its earlier courcious decision as well as decision-making process.

7. No other allegation has been placed on record against the applicant.

Same authority namely ICAR, when it allowed another official a higher type accommodation, is not justified to treat the applicant differently, particularly in the facts & circumstances of present case.

Otherwise it will amount to invidious discrimination, which is impermissible in law. Why the authorities are coercing him to accept top floor, of the same type-II, as reflected vide communication dated 16.11.2005 has not been explained. There appears to be some extraneous consideration behind such move, which has not been disclosed & clarified by the respondents.

8. In the light of the discussion made hereinabove, I find no justification in respondents stand and accordingly communications dated 10.2.2006 as well as 16.11.2005 are quashed & set aside. The respondents are directed to adhere to their memorandum dated 28.7.2005 with all consequential benefits. Accordingly, OA as well as MA are allowed. No costs.