K.K. Gupta vs Union of India and Others

Ajay Rastogi, J.—Instant writ petition is directed against order of the Central Administrative Tribunal ("Tribunal") dt. 27-2-2014.

The petitioner was a substantive employee of the department of Posts & was superannuated on 30-9-2006 while posted as PA from NG Mandi, Kota Head Post Office and being an employee of the department, a residential quarter was allotted to him in Dada Badi Postal Colony, Kota in 1995-96 under the relevant rules and the period allowed to him for retention of residential quarter after due permission from the competent authority is 8 months beyond the date of his retirement and he was supposed to handover vacant possession by 31-5-2007 and indisputably he unauthorizedly retained from 1-6-2007 to 11-9-2010 in contravention of FR 45-A, SR 317-B-11 SR-317-B-22 & also memo of the department dt. 6-8-1965 and even the last extension was granted to him on 13-3-2007 clearly indicating that no further retention is permissible to him under any circumstances and he has to hand over vacant possession by 31-5-2007 but the vacant possession of the government quarter was handed over to the authority on 12-9-2010 and a total sum of Rs. 2,76,967/- was adjusted from his retiral dues, at the same time it may be further noticed that at the time of his retirement from service a disciplinary enquiry was pending against him u/R. 14 of the CCS (CC & A) Rules, 1965 in which after the charge was finally found proved he was punished with the penalty of withholding 30% of monthly pension for five years including recovery of loss suffered by the department to be recovered from the petitioner and as regards order of penalty inflicted upon the petitioner dt. 31-3-2010 is concerned, as informed to this Court that is subject matter of challenge in the Original Application filed at his instance & pending before the Tribunal. However, we are only concerned with respect to the period of retention by him of the government quarter from 1-6-2007 to 11-9-2010 which indisputably was unauthorized retention & not permissible under the relevant Rules.

Contention of the petitioner before the learned Tribunal was that the respondent authorities were under obligation to pass separate orders for cancellation of the allotment, in absence whereof the amount towards enhanced licence fee/damage rent was not liable to be recovered from the petitioner and since no notice was served upon him by the competent authority, action of the authority was against the instructions of the department and no recovery could have been made from him at the same time his further contention was that at least recovery of the damage rent could not have been adjusted from his gratuity/retiral benefits as contemplated u/R. 71 of CCS (Pension) Rules, 1972 and such adjustment is not sustainable in law and the recovery for the period as alleged has been effected by the department from his retiral dues is not permissible u/R. 71 of the Rules, 1972.

Counter of the respondents to the petitioner''s claim before the learned Tribunal was that SR317 B-11 read with SR-B-22 provides that an employee can retain government accommodation allotted to him up to maximum period of 8 months of his retirement & that too after due permission from the authority and as per the relevant provisions referred to under SR- 317-B-11 one can retain government accommodation/postal quarter for two months on normal licence fee and further two months on double licence fee at the same time SR-317-B-22 provides for further 2 months licence fee four times and further 2 months licence fee 6 times & submitted that is not permissible to further retain the government accommodation/postal quarter as per relevant Rules and indisputably the petitioner vacated the government quarter by 11-9-2010, as such notice was served initially on 10-1-2008 to vacate the quarter within ten days failing which deemed cancellation of allotment and thereafter further notice was served on 5-9-2008 to vacate the quarter within ten days and thereafter a further notice was served on 23-10-2009 to vacate the quarter within seven days and final notice was served to him under the seal and signature of Assistant Director (notified as Estate Officer) dt. 16-3-2010 and finally he vacated the government quarter on 12-9-2010 and due to unauthorized occupation of the quarter from 1-6-2007 to 11-9-2010 an amount of Rs. 276967/- towards damage rent was ordered to be recovered from him by the Estate Officer pursuant to order dt. 6/7-10-2010 which was adjusted from his retiral dues.

It was further stated that under FR45A allotment of government accommodation after expiry of eight months which was the maximum period one can retain after retirement and thereafter it shall be deemed to be cancelled and as regards the dues pertaining to government accommodation is concerned, sub-rule(3) of R. 71 of Rules, 1972 authorizes the authority that the dues pertaining to the government accommodation including arrears of licence fee as well as damage rent for the occupation of the government accommodation beyond the permissible period after the date of retirement if any can be recovered from the retiral dues.

The contention advanced by the counsel for petitioner that there was no express order of cancellation as such it could not be said to be unauthorized retention of the government quarter is factually incorrect and at least on four different occasions notices were served but he didn''t respond and unauthorizedly retained the government quarter at the same time the further contention that even if he retained the government quarter unauthorizedly at least the said amount could not be recovered from his retiral benefits and such contention was repelled by the Ld. Tribunal taking note of sub-rule (3) of R. 71 of the Rules, 1972 which authorizes the authority that the dues pertaining to government accommodation including the arrears of licence fee as well as damage rent of the government accommodation beyond the permissible period are government dues and can certainly be recovered as provided under the Rules, 1972 and accordingly dismissed the Original Application under order impugned dt. 27-2-2014.

Counsel for petitioner has reiterated the submissions as was made before the Ld. Tribunal & repelled under order impugned dt. 27-2-2014, however, in support of submission placed reliance on the judgment of the Apex Court reported in Gorakhpur University and Others Vs. Dr. Shitla Prasad Nagendra and Others, , which in our view may not be of any assistance to the petitioner for the reason that it was a case where the retiral benefits were withheld to adjust amount due from the employee but that was disputed by him and it was noted that the employee was keeping a quarter allotted to him and continued to occupy after retirement and after retirement his request and application as per practice for allotment of quarters in the name of his son who was also an employee in the University remained pending and no orders were passed thereon, at the same time there was resolution of the University to waive the penal rent since such benefits were granted to other employees and different treatment was shown to him which constituted hostile discrimination and that was considered to be unreasonable, at the same time the University did not choose to take any action to evict him, on the contrary it acquiesced in his occupation by accepting regularly the normal rent, thus there was lack of bona fides on the part of the University.

However, in the instant case, time and again notices were served upon the petitioner to hand over vacant possession of the government accommodation, of which reference has been made supra and apart from it indisputably under the Rules the government accommodation could not have been retained after retirement for more than a period of eight months and even the authority does not hold competence to accord any further extension, on the contrary notice was served for cancellation of the licence fee on four different occasions and his possession was held to be unauthorized occupation of the government accommodation and finally handed over vacant possession of the government quarter on 12-9-2010 and thus the amount outstanding towards licence fee & damage rent could certainly be recovered from his dues u/R. 71(3) of the Rules, 1972 and what is being taken note of us finds support from the judgment of the Apex Court reported in Secretary, O.N.G.C. Ltd. and Another Vs. V.U. Warrier, .

After taking note of the submissions made and going through order of the Ld. Tribunal we do not find any manifest error being committed by the Ld. Tribunal in passing order impugned which may call our interference in the limited scope of judicial review u/Art. 227 of the Constitution of India.

Consequently, the writ petition fails and is hereby dismissed.