Anushakti Officers Sansthan and Others vs Union of India and Others

Arun Bhansali, J.—This writ petition under Article 226 of the Constitution of India has been filed by the petitioners seeking a direction to the respondents to adopt criteria as per priority on the basis of entering into the eligibility criteria i.e. 5400 grade pay in the List-2 and further direction is sought to construct the already sanctioned accommodation as well as the deficit accommodation within specific time frame.

The petitioner Nos. 1 and 2 the Associations and petitioner Nos. 3 and 4 working as Scientific Officers with the respondent Nuclear Power Corporation of India Ltd. (''NPCIL'') at its Rawatbhata, Rajasthan Site (''RR Site'') have in the petition, inter alia, submitted that the Associations are registered under the Societies Registration Act, 1960; the Members of the Association No. 1 are Scientific Officers (''SO'') of various grades and are eligible for Type IV category accommodation and Members of Association No. 2 are Scientific Assistants (''SA'') of various categories and out of the said SA, SA/E are eligible for Type IV category accommodation; it is claimed that the Rules pertaining to allotment of houses are laid down by the Department of Atomic Energy (''DAE''); it is submitted that vide Notification dated 21.08.2009 (Annexure-1) table describing the Type of residences and officers eligible for allotment of such residences based on grade pay/basic pay were indicated; in the said Notification/Table for Type-IV accommodation the grade pay indicated is Rs. 5400/- to Rs. 6600/- and in the explanation attached to the said table-under explanation (b) it is indicated that the date of priority in respect of lower type accommodation i.e. Type-I to Type-IV shall be the date of joining in the service of the Government of India and Clause (g) provides that officers entitled for Type-V and above accommodation shall also be eligible to apply for accommodation below their entitlement subject to the condition that such accommodation shall not be below Type-IV Spl. accommodation; however, the officers eligible for D-II and Type-IV Spl. shall also be eligible to apply for Type-IV accommodation. It is claimed that in terms of the Notification the priority for allotment of accommodation is the date of joining in the service of Government of India; the DAE also applied the same criteria qua type of residence and grade pay/basic pay and makes those eligible for E-Type accommodation below entitled type subject to the condition that such accommodation shall not be below Type D Spl.; further eligibility has been indicated based on grade pay in the present post.

Vide Office Memorandum dated 08.12.2009 the DAE decided to revise the classification of residences and eligibility criteria vide Annexure-3 for allotment of Government residences under the department and, inter alia, provided that the date of priority for Type D shall be in the ratio of 1:1 based on the date of drawal of grade pay relevant to Type B (pay seniority) and the date of entry into service (service seniority); whereafter Office Memorandum dated January 20, 2011 (Annexure-4) was issued by DAE and on which much stress has been laid by the petitioners, which pertained to preparation of priority list of Type D Flats and a clarification was issued that the deciding factor for determining the date of priority for Type D Flats earmarked for pay seniority should be the date of meeting any of the eligibility criteria prescribed i.e. the grade pay should be taken only for determining the eligibility and not for preparing the priority list which should be based on the date of acquiring any of the grade pays prescribed for eligibility. It is then claimed that List-2 based on the guidelines was issued in June, 2010, however, the same was revised in July, 2010 vide (Annexure-6), whereby, the person with higher grade pay were given the priority; it is claimed that the action of the respondents in preparing priority qua List-2 is violative of Allotment Rules of DAE and is depriving the right of the employees to get entitled accommodation; a reference has been made to the criteria adopted by the NPCIL as indicated in Annexure-8, wherein, a clarification has been issued indicating that the employees who draws higher grade pay shall be placed above the employee, who draws lessor grade pay; the service priority list shall be prepared as per date of entry into service of the eligible employees; it is alleged that the said criteria laid down is contrary to the guidelines (Annexure-1). It is also claimed that the criteria adopted by the respondents is evident from the table pertaining to priority in List-2 based on grade seniority, wherein, the Members of the petitioner Associations have over the period of time lost their priority to the other fresh incumbents; it is further claimed that the suggestions made by the petitioners Association were not exceeded to by the respondents; it is submitted that several reports made by the petitioners Association from time to time though forming subject matter of various meetings the same were not resolved and always the line that the Accommodation Policy is being followed as per the Corporate Office Guidelines was toed; based on the above facts the present petition has been filed.

A response has been filed by the respondents NPCIL, wherein, it is, inter alia, claimed that the Board of Directors of the NPCIL are vested with the powers to formulate the Policies of the Corporation under nomenclature ''Head Quarter Instructions'' (''HQI''); it is, inter alia, indicated that there is no concept of construction of D-Special quarters as per the HQI (Annexure-R/2); it is, inter alia, indicated that the Site Management Committee of the respondent Corporation took policy decision that allotment in Type-IV (Type-D) category shall be operated 1:1 ratio i.e. Service Seniority and Pay Seniority way back in the year 2004. A submission has been made that the recruitment of Group-A category employees with grade pay of Rs. 5400/-, in Technical as well as Non-Technical cadres is being made at the Head Quarter of NPCIL and recruitment of Group-B, C and D is made at the site level; the Group-B to D category of employees also acquire the grade pay of Rs. 5400/- consequent upon their promotions in their respective cadres and to accommodate the said promotees allotment of Type-D quarters is being made in 1:1 ratio since inception as a matter of policy so as to avoid any kind of discrimination in Allotment Policy; it is also claimed that the candidates are posted at different Power Projects and Power Stations and are transferred from one Power Station/Power Project to another Power Station/Power Project; further, the promotions of the Scientific and Technical category of employees is done on fast track basis known as ''Merit Promotion Scheme'', wherein, promotions are made irrespective of availability of the vacancies in the higher grade.

It is claimed that on the one hand the petitioners have accepted the principle laid down in Government of in decision but on the other hand it is surprising that the petitioners were raising unfair, unjust, illegal and arbitrary demand regarding officer acquiring grade pay of Rs. 5400/- be only included in List-2 (i.e. Pay Seniority) meaning thereby that names of Officers acquiring the higher grade pay of Rs. 6600/-, 7600/- and 8700/- be delisted, which aspect is wholly baseless.

It is submitted that the respondent Corporation at RR Site has formulated NPCIL (Rawatbhata Rajasthan Site) Residential Accommodation Allotment Rules, 2012 (''the Allotment Rules of 2012''), wherein, also the criteria adopted is being followed by the respondents and, therefore, the petition filed by the petitioners deserves to be dismissed.

Regarding pushing down of the Members of the petitioner Associations in successive priority list, it is indicated that the Scientific Officers and Technical Personnel on acquiring higher grade pay consequent upon their merit promotions the authorities are bound to revise the priority list in accordance with the allotment Rules and no exception can be taken to the said aspect and, therefore, the petition deserves to be dismissed.

It is submitted by learned counsel for the petitioners that the criteria adopted by the respondents qua the Pay Seniority is discriminatory and the several representations made by the petitioners for adopting the fair criteria in consonance with various clarifications as per the eligibility based on the grade pay have gone in vain; the respondents are bound to give preference to the Pay Seniority instead of Higher Grade Pay; the criteria adopted is faulty and, therefore, the same has added to the misery of the Members of the petitioners Association on account of shortage of the accommodation; it is also submitted that the criteria sought to be applied by the respondents is contrary to the Government of India instructions and, therefore, the respondents be directed to adopt a fair criteria.

Vehemently opposing the submissions made by learned counsel for the petitioners, learned counsel for the respondents submitted that the petition filed by the petitioners is not maintainable; referring to the prayers made in the writ petition, it was submitted that the petitioners have failed to seek relief qua any of the guidelines, criteria, circular or policy and, therefore, in absence whereof the writ petition is not maintainable and the same deserves to be dismissed on this count alone; it was submitted that much reliance has been placed by the petitioners on the Office Memorandum dated 20.01.2011 (Annexure-4), however, the petitioners have suppressed that vide Annexure-R/6, the Office Memorandum dated 20.01.2011 (Annexure-4) stands withdrawn and the Office Memorandum dated 08.12.2009 (Annexure-3) itself has been amended and, therefore, as the petitioners have not approached this court with clean hands, the petition deserves to be dismissed on this count also.

It was submitted that the various guidelines of the DAE as well as the Allotment Rules of 2012 (Annexure-R/11), clearly provide that qua the Pay Seniority the date of priority shall be determined firstly based on the grade pay of the officer and secondly the priority date within the same grade pay and, therefore, the respondents have been following the settled criteria and the contentions raised by the petitioners in this regard are totally baseless; it is submitted that as persons drawing higher grade pay, who otherwise are entitled to higher/better accommodation are also entitled to Type D accommodation, the petitioners cannot claim any right or relief seeking to dis-entitle the said persons who are otherwise entitled to the same under the Rules; the allotment of accommodation and the procedure whereof, which has been adopted by the respondents is in consonance with the settled practice and a policy decision of the respondents, which unless the petitioners are able to establish as illegal or discriminatory, is not open to challenge under Article 226 of the Constitution of India and, therefore, the writ petition filed by the petitioners deserves to be dismissed.

I have considered the submissions made by learned counsel for the parties and have perused the material placed on record.

At the outset, it may be noticed that the dispute pertains to Type IV or Type D residences pertaining to the RR Site of NPCIL; there is no dispute regarding the procedure adopted by the respondents in prescribing that the allotment of Type D accommodations shall be in the ratio of 1:1 i.e. the available Type D accommodations shall be allotted in equal proportion based on Service Seniority and Pay Seniority; the petitioners in so far as the criteria adopted for Service Seniority i.e. date of entry into service is concerned are not aggrieved, however, the grievance pertains to the criteria adopted for reckoning the Pay Seniority qua the entitlement to allotment of Type D accommodations.

From the material available on record, the petitioners have laid much emphasis on two documents being Notification dated 21.08.2009 (Annexure-1) and Office Memorandum dated 20.01.2011 (Annexure-4); the Notification (Annexure-1), which has been issued by the Dy. Director of Estate (Policy) pertains to amendment in the Allotment of Government Residences (General Pool in Delhi) Rules, 1963 (''Rules of 1963'', wherein, in the Rules of 1963 the Supplementary Rules-317-B-5 was substituted providing for eligibility for allotment of residences of the various types of residences; the explanation as noticed herein various before provided that the date of priority in respect of lower type accommodation i.e. Type I to Type IV shall be date of joining in the service of the Government of India and further that officers entitled for Type V and above accommodation would be eligible to apply for accommodation below their entitlement and officers eligible for D-II and Type IV special shall also be eligible to apply for Type IV accommodation.

Further, the Office Memorandum dated 20.01.2011 (Annexure-4) as noticed hereinbefore issued by the DAE provided that the grade pay should be taken for determination of eligibility and not for preparing the priority list which should be based on the date of acquiring any of the grade pays prescribed for eligibility.

Based on the above two stipulations and the fact that on account of the procedure adopted by the respondents, priority of the Members of the petitioners association is being pushed back, the edifice of the present writ petition has been sought to be built. Qua the Notification dated 21.08.2009 (Annexure-1) it may be noticed that though the said Notification provided for priority based on joining in the service of Government of India and also entitlement of Officers of higher grade to apply for Type IV accommodation, the same did not envisage allotment in the ratio of 1:1 based on Pay Seniority and Service Seniority and, therefore, the criteria as indicated in Annexure-1 in absence of the bifurcation of allotment of the residences, apparently does not have any application/implication.

The aspect relating to 1:1 ratio appears to have been introduced by the DAE vide Annexure-3 dated 08.12.2009 which, inter alia, provided as under:-

"(v) The date of priority for type ''D'' shall be in the ratio of 1:1 based on the date of drawal of grade pay relevant to Type ''D'' (pay seniority) and the date of entry into service (service seniority), as is being followed at present."

Whereafter, vide Annexure-8 dated 30.07.2010, the respondent Corporation with respect to the criteria for allotment of accommodation, provided as under:-

"Sub: Revised Criteria for allotment of accommodation

Please refer to RR Site letter No. RR Site/AGM(HR)/2010/S/100 dated 29.07.2010 seeking clarification on method of preparation priority list for allotment of Type D family accommodation under Pay Seniority.

In this connection, it is to clarify that as per prevailing orders, allotment of Type D family accommodation shall be in the ratio of 1:1 of Pay Seniority and Service Seniority. The pay priority list is to be prepared based on the higher pay drawn by the employee on crucial date of preparation of the priority list. As such, the employee who draws higher grade pay shall be placed above than the employee who draws lesser grade pay. The service priority list shall be prepared as per date of entry into service of the eligible employees. In this regard, also refer to DAE Om No. 8/2(18)/2008-SUS/6242 dated 08.12.2009 copy forwarded vide our letter No. NPCIL/VSB/HRP/11(2)2010/8 dated 04.01.2010."

Apparently, on account of issuance of criteria (Annexure-8), grievances were raised, which led to the issuance of Office Memorandum dated 20.01.2011 (Annexure-4) issued by DAE, wherein, the following clarification, inter alia, was issued:-

"2. The matter has been examined in the Department. It is clarified that the deciding factor for determining the date of priority for Type-D flats earmarked for pay seniority should be the date of meeting any of the eligibility criteria prescribed. In other words, the grade pay should be taken only for determining the eligibility and not for preparing the priority list which should be based on the date of acquiring any of the grade pays prescribed for eligibility."

However, the above clarification dated 20.01.2011 (Annexure-4) was withdrawn and the criteria as laid down by Office Memorandum dated 08.12.2009 (Annexure-3) was amended vide Office Memorandum dated 20.06.2011 (Annexure-R/16) issued by DAE. The Office Memorandum reads as sunder:-

20.06.2011

OFFICE MEMORANDUM

Sub: Allotment of Govt. Residences (DAE) Bombay Rules, 1982 - New Norms pursuant to 6th CPC recommendations - reg.

Reference is invited to this Department''s Office Memorandum Nos. 5/2 (18)/2008-SUS/6242 dated 08.12.2009 on the captioned subject. Para 3(v) of the said Office Memorandum is hereby amended to read as under:

Consequent upon issue of the above amendment, the Office Memorandum No. 5/2(18)/2008-SUS/723 dated 20.01.2011 issued by the Department is hereby withdrawn."

emphasis supplied

Pursuant thereto, the respondent Corporation, it appears issued the revised criteria based on the approval granted by the competent authority vide order dated 05.07.2011 (Annexure-9), which clearly was replication of the office memorandum dated 20.06.2011 (Annexure-R/16) (supra).

Whereafter, it appears that the respondents, while formulating the Allotment Rules of 2012 have incorporated the above aspect pertaining to the priority by way of including the same in definition 2.6 of the Rules, which reads as under:-

"2.6 "Priority date" of an employee in relation to a type of residence to which he is eligible under these Rules means, the earliest date from which he has been continuously in service under the NPCIL/Department of Atomic Energy(DAE)/AEES in respect of Type-I, Type-II, Type-III and accommodation in Senior/Junior Hostels. Priority date of an employee for Type IV accommodation shall be in 1:1 ratio with priority date based on date of joining in the DAE/NPCIL/AEES service and based on the earliest date from which the employees continuously drawing the relevant Grade Pay for Type-IV accommodation. Type-V and above accommodation shall be the date from which he has been continuously drawing the relevant Grade Pay for Type-V, and above accommodation."

From the above, it is ex facie clear that while the DAE itself revised the criteria vide Annexure-R/16, the same has been adopted by the Corporation vide order dated 05.07.2011 (Annexure-9) and by the Allotment Rules of 2012, it cannot be said that the respondents have adopted/applied the Policy against the instructions of the Government of India/DAE as contended by the petitioners.

Reliance placed on (Annexure-4) dated 20.01.2011, which also stands withdrawn vide Annexure-R/16, is wholly baseless, inasmuch as, it is not open for the petitioners to rely on a withdrawn memorandum/criteria and, therefore, the said submission made by the petitioners also has no substance.

A look at the criteria as provided based on the amendment reveals that so far as the priority date for service seniority is concerned the same has been prescribed as date of entry into service and for the purpose of pay priority the criteria indicated is firstly, the grade pay of the Officer and secondly the priority date within the same grade pay; the submissions made on behalf of the petitioners that even for the purpose of List-2, which presently pertains to the pay seniority, the date of acquiring the grade pay should be taken into consideration, if accepted would result in factually deleting the different criteria pertaining to List-2 completely, inasmuch as, once the grade pay seniority of the officer is deleted, there hardly would be any difference between List-1 and List-2 and, therefore, the basic stipulation provided in the allotment rules/criteria regarding ratio of 1:1 based on Service Seniority and Pay Seniority would be rendered redundant.

There is also substance in the submissions made by learned counsel for the respondent that as the direct recruitment takes place in Grade-A category, the candidates are posted at different Power Projects and Power Stations and as Merit Promotion Scheme has been adopted, the criteria based on grade pay seniority is necessary, otherwise, the officers who have acquired the higher grade pay of Rs. 6600/- 7600/- and 8700/- would never get Type IV accommodation as they would based on the grade pay prescribed for eligibility for such accommodation based on priority date only would always be at the lowest pedestal, which would not at all be desirable, which appears to be reason for prescribing 1:1 ratio for allotment of accommodations based on Pay Seniority and Service Seniority.

The adoption of criteria for the purpose of allotment of Government accommodation based on the availability, persons entitled to get accommodation and all other relevant considerations has to be determined and decided by the concerned authorities/department/Corporation and unless the petitioners are able to point out any apparent mala fides, arbitrary exercise of power and/or obvious discrepancy or discrimination in such Policy, the same being within the realm of Policy decisions, are not open to challenge under Article 226 of the Constitution of India.

Hon''ble Supreme Court in Krishnan Kakkanth Vs. Government of Kerala and ohters, held as under:-

"36. To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial whether a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision can not be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, court should avoid "embarking on uncharted ocean of public policy."

In view of what has been discussed hereinbefore, the petitioners who have not prayed for quashing of any of the criteria/allotment rules etc. formulated and applied by the respondent NPCIL have failed to make out any case for interference in the present writ petition. There is no substance in any of the contentions raised in the writ petition and the submissions made on behalf of the petitioners.

Consequently, the writ petition has no substance and the same is, therefore, dismissed. No order as to costs.