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Judgment
Petitioners, who are employee of High Court, have filed these petitions seeking a direction from this Court that Govt. should consider their cases
for allotment of Government accommodation.
All these petitions raise' similar questions, therefore, are being decided by this common judgment.
After objection were filed, it was submitted by the respondents that every employee of the Government is being paid House Rent Allowance
(HRA) and, therefore, question of allotment of accommodation to Govt. servant does not rise at all, as a matter of right
Petitioners submitted that they have made applications which were recommended and endorsed by the Registrar of High Court. Respondents in
their objections have submitted that these applications can be disposed of in accordance with rules. They further submit that since the petitioners
have not shown any cause, therefore, they were not entitled to any Government accommodation.
After these petitions came to this Court, Following order was passed by this Court on 17895:
A number of cases are coming up before this Court seeking directions from this Court to the effect that they should be provided Government
accomodation. Prima facie, it appears that there are no guidelines, rules or norms in accordance with which the Government accomodation is
provided to employees of the state Government or even to private persons. Therefore, I direct the respondents to file an affidavit showing there the
guidelines, norms and rule s by which accodomations are being allotted and whether any que is maintained or not Respondents shall also file an
affidavit showing thereby the allotments made by them Jammu City for the last six months. Till further orders from this Court, no further allotments
shall be made without seeking permission from this Court. The restriction, shall, however, not apply while allotments are made to constitutional
authorities, who are entitled to Government accomodation. The Government shall also be free to make allotments, if the security of a person so
demands.
Petition again came up before this Court on 15.9.95 and on that date this Court passed the following orders:
An order passed by this Court on 17.8.95 called upon the respondents to place before the Court the guidelines for allotments of Government
accommodation. Besides that an affidavit showing the list of allotments for the last six months was also required to be furnished.
Mr. Rehman appearing for the respondents has filed detailed objections. He has also filed an affidavit in compliance to the Court order, sworn in
by Director of Estates, wherein the norms laid down by a cab nit Decision No. 101 dated 22.2.1977 have been indicated. In addition to this a
copy of the list of Government quarters allotted for the last six months has also been filed.
The petitioner submits that Advocates have resolved not to work today.
Since the order dated 17.8.1995 has been passed by Hon'ble Mr. Justice Bilal Nazki, I would like the case to be listed before that Bench today.
Following order was passed, after the case was listed before this Court on 15.9.1995:
11 The order dated 17.8.95 has been complied with. The respondents have filed an affidavit showing the guidelines and norms under which the
Government accomodation is being provided. They have also filed a list of the names of allottees who have been allotted Government
accomodation in Jammu City for the last six months. The Director, Estates Department, who is present in the Court, has not in his affidavit stated
as to what is the method of allotment between person within a particular category. The Director shall be at liberty to fie a fresh affidavit to take this
Court into confidence as to whether there are any guidelines laid down in this connection or not? In case the affidavit is not filed, then this Court
shall be bound to presume that it is only pick and choose method which is being adopted.
I have seen that out of the total allotments, in terms of the Govt. Order No. 12C&M of 1977, 85% of the residential accommodation is to be
allotted to Darbar move employees, and out of the remaining 15%, 9% residential accommodation is being allotted at the discretion of the Works
Minister/Chief Minister, that means only 6% of the total residential accomodation is being allotted by the Estates Department to other categories.
Prime facie it appears that the discretion given to the Works Minister/Chief Minister is without any guidelines and norms. Therefore, this petition
needs to be heard in detail. The petitioner who is present in the Court and the counsel for the respondents agree that the matter be decided at this
stage. Mr. Hafiz appearing for the respondents submits that the annual Darbar move to Jammu has to take place with in next six weeks, and in
case the stay order remains operative, it will create a lot of difficulties for the Darbar Move employees. The counsel appearing for petitioner is not
available, therefore, the case shall be taken up in the first week of November, 1995, for the final disposal.
In view of the submissions made, I modify the order of stay passed on 17081995 to the extent that the respondents shall be free to pass orders
with regard to providing of residential accommodation to the officials /officers connected with the Darbar Move, in addition to the allotments to be
made to constitutional functionaries and to such persons, who according to the Government, need Government accommodation for security
reasons. The respondents shall also be at liberty to make allotments in favour of the persons whom 6% reservation has been made vide
Government Order of 1977(supra), but that shall be made strictly on first come first serve basis. The applications which are made prior in time
shall receive preferential consideration. The remaining 9% quota which has been left at the discretion of Works Minister/Chief Minister shall not be
operative till further orders from this Court. In case of emergency, however, this quota may be utilised on express orders of the Governor. It is
further directed that in case the petitioner falls and is entitled for accommodation within the 6% quota, he shall also be allotted suitable residential
Government accommodation.
The order passed by this court on 07031996 also needs to be reproduced below :
This writ petition has been filed by the petitioner who is an employee of the High Court. During the course of the proceedings, this court reached
to a prime facie conclusion that the Government houses are being allotted by the respondent solely on basis of discretion of the concerned Officers.
It has also appeared that there is no queue maintained and as and when an Officer is interested and a house becomes available, the allotment is
being made. Various orders were passed by this Court and certain affidavits have also been filed. The Supreme Court in a Landmark judgment
titled : Union of India and others V/s Pratibha Bannerji and anr. reported in 1995(6) S.C. cases page 765 has held that the Judges and the
Government have not a master servant relationship. The court further held that the Constitution makers were keen to insulate the Judiciary including
the subordinate Judiciary from the influence of the Executive. It further held that officers and servants of High Court are under the exclusive control
of Chief Justice and not of the Government. The court further held that not only the judges even the staff members have to be insulated from
executive influence. In view of the law laid down by the Supreme Court, it will be desirable to lay down the parameters for allotment of
accomodation to the employees of this Court in a way in which the Government influence is minimized.
Therefore, it would be desirable if certain houses are earmarked for the Judiciary permanently and are kept at the disposal of the Registrar of this
Court. In order to fix the parameters and examine the correct legal position, I frame the following two questions which will have to be decided in
this writ petition
(a). Whether this Court can fix quota of houses for being allotted to the employees of the High Court and employees of Subordinate Judiciary
throughout the State?
(b). If so, what should be decide these questions, respondents if they so choose, may file any submissions or any data, which according them, shall
be necessary to be taken into consideration while deciding the controversy. A notice be also given to the High Court Staff Welfare Association,
who may also like to intervene in the matter. The matter shall be listed for final hearing after two weeks.
In view of the orders mentioned above, this petition must be treated to have been already admitted to hearing.
I have heard the learned counsel for the parties.
A report of compliance of orders of this court was submitted by the respondents on 12091996. This report of compliance discloses that on
01091996 the total residential units in Jammu and Srinagar, which were available with the Government, were as follows:
Jammu
Minister Bunglows : 25
Special AType Gandhinagar : 14
AType Quarters Gandhinagar : 36
Secretary Quarters : 31
BType Gandhinagar : 40
CType Gandhinagar : 58
Three roomed sets : 395
Two roomed tenaments : 1034
One room tenaments : 1170
Single room : 81
Door Mattery 12 : 12
E.P. (VIP) : 3
Tin Sheds : 46
Total : 2945
Srinagar
One room sets : 136
Two room sets : 419
Three room sets : 268
CType Qrs. : Nil
BType Qrs. : 60
AType Qrs. : 61
Spl. AType Qrs. : 35
Bunglows : 42
It was also submitted that total number of employees working in Jammu were over 9700.
With regard to policy of allotments of Government accommodation, respondents have relied on Government Order No. 120 O&M of 1977
dated 09031997. This order reserves 85% of the residential accommodation for moving employees. The remaining 15% is being allotted in the
following manner :
1.Central Government Employee
M.L.A/MLC's
At the discretion of Works Minister/Chief Minister
Government employees posted in Divisions other than the one to which they belong and Government employees posted within the Divisions of
their residence provided that they hail from distant far flung area of the Division.
This Government order will in itself show two important things one that Government is not empowered by this order to allot houses to persons
who are not in Government service. Secondly, it will also show that no quota has been fixed for the employees of the Judiciary. Normally no
discretionary quota should/have been given to the Chief Minister or to the Minister In charge but in view of the peculiar circumstances in which the
State finds itself, at present because of on going militancy, it will be reasonable to reserve a 5% quota for the Chief Minister/Minister In charge.
The remaining 4% of the discretionary quota can be utilised for the employees of the High Court and the employees of the Subordinate Courts,
therefore, the order of the Government dated 09031977 is quashed to the extent mentioned herein above. Till the Government earmarks 4% of the
total houses for the use of the Judiciary, I shall make necessary directions for allotment of houses to the Judicial employees in the course of this
judgment.
I have not been able to agree with Mr. Rehman, learned counsel appearing for the respondents, that the allotments are being made on first
come first serve basis but it appears that there is a pick and choose method and allotments of houses to the Government employees in such a
fashion cannot be permitted. Therefore, respondents are directed to maintain a registrar in which the name of the applicant must be added on the
date he makes the application and the allotment must be made in his favour when his turn comes. There is an important aspect of the matter to
which Mr. Rehman has drawn my attention. He submits that there are number of houses which have been occupied by the Government servants
when they were in service but have not vacated after they retired. He further submits that there are number of houses which have been occupied by
the Government Servants when they were in service but have not vacated after they retired. He further submits that there are houses which are not
being vacated after a person is transferred from the station where the allotment was made in his favour. He further submits that if a Government
employee retires and refuses to vacate the house, he is proceeded in terms of Jammu and kashmir Public Premises (Eviction of Unauthorised
Occupants) Act. 1988 and in many cases the eviction has been stayed by the District Judges. In terms of this Act unauthorised occupation in
relation to any public premises has been defined in 2(g) and it is defined as under :
Means the occupation by any person of the public premises without authority of such occupation, and includes the continuance in occupation by
any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to
occupy the premises has expired or has been determined for any reason whatsoever.
Mr. Rehman contends that if a person retires or is transferred from a station and is sought to be evicted, an order is passed by the Estates
Officer, which is challenged by way of an appeal before the District Judge and it takes long time for this appeal to get decided. Sub Section g of
Section 2 makes it clear before the person is termed as an unauthorised occupant, the grant or transfer, by which he was placed in occupation of a
house is to be determined.
In my view, in case of an Government servant, who is transferred from a station or is retired, there is no question of determining the grant or
transfer and therefore, if an officer who is providing accommodation by the Government at a particular station is transferred from that station or a
Government employee who is provided accommodation and retires from service, cannot claim any right under the Public Premises (Eviction of
unauthorised occupants) Act, 1988.
In my view the allotment of a house or accommodation in favour of Government servant and vacation of the house at the time of transfer or
retirement is a condition of service. When a person enters into the Government service, he knows his date of retirement. he also knows that he can
occupy the house till his retirement, therefore, when a house is allotted to a Government Servant, he also knows the date when he has to vacate it.
Therefore, there will be no question of determination of that allotment.
In terms of Civil Services Regulations, 55B, it has been laid down that no public building shall occupied as a private residence without the
orders of the government and instructions have been given by the Government in the Civil Services Regulations and instruction No. 2 makes it
abundantly clear that if a person is transferred from one place to another he can occupy a house for fifteen (15) days without rent and for a period
not exceeding two months on payment of rent. In case of employees who retire can retain a house as a matter of right for one month.
Therefore, I am of the view that there are no safe guards provided for the Government servant under the Act. In case of Government
employee who retires from service or who are transferred from the station where they were provided accommodation, there is no question of
determination of the transfer or allotment, therefore, I hold that when a Government Officer retires from service or is transferred from a Station
where he was provide accomodation, there is need for proceeding against him in terms of Public Premises (Occupation of unauthorised
Occupants) Act, 1998, if he retains the possession of the house. Such cases should be deal with in accordance with relevant Civil Service
Regulations and in case they fail to vacate the premises with in the time prescribed under Civil Service Regulations, the authorities shall be within
their rights to evict him after issuance of a notice for eviction so that rules of natural justice are complied with.
In case an officer who retiers from service does not vacate the premises, a notice of one week shall be sufficient to evict him.
Since the Government has no power under the Government order referred to above for making allotments in favour of the persons who are not
Government servants it will be difficult for the Govt. to meet the needs of those persons who are not Government servants but need Government
accomodation in view of the problem of their security, therefore. it is advisable that the Government should make necessary orders to equip itself
with the power to use the 5% discretionary quote for allotment of houses to such person but at the same time the Government shall within a period
of one year try to shift all these persons to one complex, both at Jammu and Srinagar so that they are suitable accommodated and security is
provided to them at one place. This will ensure a better security and will also cut down the expenses incurred by the Government on shelter and
security of the persons who have threat to their lives, however, it is made clear that no accomodation shall be provided to such person unless it is
certified by the Commissioner/ Secretary, Department of Home, that the persons needs to protected.
23 Reverting back to the problem of accomodation of employees of the Judicial Department, I am of the view that although the employees of the
High Court and Subordinate Courts are Government servants but strictly speaking, they are a class apart and need to be dealt with separately. The
Government is bound to provide accomodation to the Judges of the High Court, Judicial Officers of the High Court, Staff of the High Court and
staff of the Subordinate courts.
Time and again during these proceedings, this Court has asked the State Government to spell the percentage or a particular number of houses
which they would like to place at the disposal of Registrar of the High Court so that the proble is redressed
The accomodation provided to the Judges of the High Court shall not be dealt with by me in these proceedings because Government is bound
in terms of Service Conditions of High Court Judges, to provide accommodation to the Judges of the High Court. Only I would like to add the
State Government should not make the High Court or Judges of the high Court dependent on allotments being made by the Department on
allotments being made by the Department of Estates. A required number of houses, both at Jammu and Srinagar, should be placed at the disposal
of the Hon'ble Chief Justice, who can not only allot the houses when a judge requires a house but also can get it vacated as and when a judge
losses right to occupy a house either on his retirement or his transfer.
The problem of providing accommodation to the Judicial officers has already been taken care of by the Apex Court and there is already a
judgment from the Apex Court under which the Government s bound to provide accommodation to Judicial Officers.
Coming to the problem of the employees of the High Court and subordinate Courts, Mr, Raina and Mr. Pandita, learned counsel appearing for
the petitioners, submitted that in view of the fact that Judiciary is a separate entity and from Judiciary it is required and expected that it shall not be
independent but also appears to be independent, therefore, not only the Judges or the Judicial Officers but the staff of the judiciary is to be
insulated from any extraneous influence. They have drawn attention of this Court to Judgment of the Supreme Court titled union of India and others
V/s Pratibha Bonnerjea and another, reported in 1995 S.S.C (6) page 765 [Para 27]. The following observation of the Supreem Court needs to
be reproduced:
From the scheme of the Constitution to which we have adverted briefly it is obvious that the constitution makers were evidently keen to ensure
that the Judiciary was independent of the Executive. An independent, impartial and fearless Judiciary is out constitutional creed. The constitution
has tried to insulate the Judiciary from outside influence both from the Executive and the Legislature. The Provisions of Chapter VI in Part VI of the
Constitutions dealing with the courts below the State High Court also show that the Constitution makers were equally keen to insulate even the
subordinate Judiciary. Articles 233 to 237 have, therefore, provided a wholly different mode of selection and appointment of Judicial Officers at
the grassroots level and up to the District Courts from the one provided for other civil posts. No doubt the initial appointment has to be made by
the Governor of the State, albeit after selection as provided in that chapter, but thereafter the posting and promotion, grant of leave, etc. is with the
High Court and not the Government. Thus the Judicial officers belonging to the subordinate courts are placed under the protective umbrella of High
Court. We have already pointed out the provisions dealing with the appointment of High Court Judges. The entire procedure outlined for their
appointment is totally different from that provided for other services. That is because the Constitution makers were conscious that the notion of
judicial independence must not be diluted. if the relationship between the Government and the High Court Judge is of master and servant it would
run counter to the constitutional creed of independence for the obivious reasons that the servant would have to carry out the directives of the
master. Since a High Court Judge has to decide cases brought by or against the Government day in and day out, he would not be able to function
without fear or favour if he has to carry out the instructions or directives of his master. The whole concept of judicial independence and separation
of the judiciary from the Executive would crumble to the ground if such a relationship is accepted. That is why not only Judges but even the staff
members are insulated from the Executive influence. Article 229 clearly provides that appointments of officers and servants of a High Court shall
be made by Chief Justice of the Court or such other Judge or Officer as he may direct. Even the conditions of service of officers and servants shall
be such as may be prescribed by the Chief Justice or his nominee authorised by him to make rules; the approval of the Governor is necessary only
if the rules relate to salaries, allowances, leave or pension. This provision also shows that Officers and servants of the High Court are also under
the exclusive control of the Chief Justice and not the Government. If that be the relationship between the officers and servants of the High Court
visavis the Government, it is difficult to imagine a master and servant relationship between the Government and Judges of the High Court. We have,
therefore, no hesitation in coming to the conclusion that the relationship between the Government and High Court Judges is not of master and
servant. They cannot be said to be holding a post under the Union/State.
The law laid down by the Supreme Court makes it abundantly clear that even the staff members of the Judiciary have to be insulated and
protected from the Executive influence If an officer of the Court has to approach, day in and day out, the Officers of the Executive, for suitable
accommodation, the whole concept of the Judicial independence shall fall to the ground. It is not a luxury which we are asking from the
Government for our employees but the basic need has to be fulfilled and in these circumstances, I had asked the State Government to come out
with a proposal but no proposal was presented. The Government, on the other hand, is creating accommodation for the employees of the
Government by incurring huge amounts. It is also spending huge amounts in maintenance and up keep of houses but it is sad that the employees of
the Judiciary are treated like orphans.
After considering the number of Government employees and the number of employees of the High Court at Srinagar and Jammu and also after
considering the accommodation available with the Government and keeping in view the number of houses which are at present occupied by the
Judicial employees, I order that the following number of houses shall be placed at the disposal of the registrar of the High Court, within three
months from today:
SRINAGAR
25 Two Room Sets
12 Three Room Sets
3B Type Quarters
3A Type Quarters
This will be in addition to the accommodation which is already with the employees of the Judiciary at Srinagar.
JAMMU
3Secretary Quarters
3B Type Quarters
4C Type Quarters
20 Three Room sets
40 Two Room sets
20 One Room tenaments.
This will also be in addition to the accommodation already occupied by the employees of the Judiciary at Jammu.
To avoid any confusion, I would like to give following directions, before concluding the case of the petitioners:
a. That all those persons who have ceased to be Government servants, for any reason, shall be evicted from the houses allotted to them as
Government servants immediately. This direction shall not, however, apply to persons whose eviction has been stayed by High Court in any
proceedings.
b. Persons who are not in Government service but require Government accommodation, because of security reason, should be tried to be
accommodated within one complex so that their security is ensured and State has to incure lessor amount for their security.
No person who is not a Government Servant, but is provided the Government accommodation for security reasons, shall be given more than
one unit of accommodation in the state of Jammu & Kashmir.
Persons who are at present having Government houses both at Jammu and Srinagar be asked for a choice and evicted from the other houses. This
shall also be done with in one month.
The Houses and the accommodation Units available with the State Government shall be classified by a Committee to be appointed by the Chief
Secretary of the State within six months and the entitlement of a particular Officer to a particular type of accommodation shall be determined by
that classification. A separate queue shall be maintained for separate type of accommodation in which applications shall be considered for the type
of accommodation to which the applicant will be entitled on the basis of his status and grade, which may be classified by the Committee.
A Government Officer who has his own house at the place where he is stationed, shall not be entitled to Government accommodation.
With these directions, the writ petitions are accordingly disposed of.