Daya Shaaker Lal vs Vice-Chancellor, University of Allahabad and Others

R.A. Sharma, J.—Petitioner, a lecturer in Georaphy Department of the University of Allahabad (here-in-after referred to as the University), was appointed in 1983 as Superintendent of Sri Tara Chand Hostel of the University. Being the Superintendent of the hostel he was provided University accommodation for his residence The appointment of the Petitioner as Superintendent was extended from time to time and continued up to July, 1987. After the Petitioner''s term as Superintendent of the hostel came to an end, he applied for University accommodation and the Vice Chancellor in view of his request permitted him to occupy the aforesaid accommodation till further orders. Petitioner retired as a Reader in June, 1989 After his retirement the Petitioner has continued to occupy the University accommodation mentioned above has refused to vacate it inspite of the request made by the University from time to time. As the Petitioner has not vacated the University accommodation after his retirement inspite of the request made by the University author is ties, he has not been given the post retirement benefits, i. e. pension, gratuity etc. by the University. The Petitioner has accordingly filed this writ petition for writ of mandamus directing the Respondents to pay him the pension along with other post retirement benefits. The University has filed a counter affidavit and in reply thereto the Petitioner has filed rejoiner affidavit,

Learned Counsel for the Petitioner has argued that the pension and other post retirement benefits are the properties of the Petitioner and it is not open to the University authorities to withhold the same. In reply, learned Counsel for the University has referred to the averments made in the counter affidavit and has also made a statement that the University is ready to pay pension etc, to the Petitioner, if he vacates the University accommodation and in that connection has invited our attention to the order of the State Government dated 2-5-1989, whereby the Government of U.P. has directed the University authorities not to pay pension, gratuity etc, to the teachers of the University till they vacate the official accommodation of the University Learned Counsel for the Petitioner has on the other hand submitted that the University should make payment of post retirement benefits to the Petitioner and thereafter can take proceedings in the court for his ejectment but the payment of the dues cannot be withheld merely on the ground that the Petitioner has not vacated the official accommodation of the University;

It is true that pension, gratuity etc. are the properties of the employees and they are entitled to be given these benefits after their retirement. Unless law provides otherwise, it is not open to the employer to withhold the payment of the post retirement benefits of the employees. But it is also equally true that it is not open to any employee to retain the property of the employer after retirement to which he is not entitled under law. Just as the University cannot withhold the payment of pensionary benefits etc, the Petitioner is also not entitled to keep the University accommodation in his occupation after his retirement. From the perusual of the affidavits exchanged by the parties it is clear that the Petitioner has acted in a most unfair manner by keeping in his occupation the official accommodation of the University to which he is not entitled after his retirement. University accommodations are meant for teachers., who are serving the University. If these accommodations are retained by the teachers even after retirement, those who join the University later are denied the benefit of official accommodation on account of which they suffer great heardship.

The jurisdiction under Article 226 of the Constitution of India is equitable jurisdiction. He, who approaches the court of equity must come with clean hands. If the Petitioner can claim pension etc. on the ground that it is his property, the University can also raise identical claim to the official accommodation, which is illegally in occupation of the Petitioner. It is not open to the Petitioner to say that he will not handover the possession of the University property unless ejected by the court. This Court is not bound to interfere under Article 226 of the Constitution, if it finds that the Petitioner has conducted himself in unfair and reprehensible manner. He, who seeks equity must do equity. It is open to this Court to mould the relief to do justice between the parties and issue in connection therewith appropriate directions.

In view of the facts and circumstances of the case, we consider it appropriate to issue the following directions:

(i) The Petitioner will hand over the University accommodation, which is in his occupation, within six weeks from the date of this judgment.

(ii) The University authorities will charge rent including penal rent permissible under law from the Petitioner for the period subsequent to his retirement till he vacates the accommodation.

(iii) After deducting the rent and the penal rent mentioned above the University will pay pension, gratuity etc. with interest at the rate of 6% per annum to the Petitioner within two months from the date of vacation of the official accommodation of the University by him.

(iv) In case any of the parties does not comply with the directions contained herein, it will be open to the other side to take action in accordance with law.

With the aforesaid direction, the writ petition is disposed of. In view of the facts and circumstances of the case, there shall be no order as to costs.