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Judgment
O R D E R
The applicant, Assistant Engineer (E/M) in Military Engineering Service, was posted in Air Force Station, Palam in May, 2013. He was allotted Accommodation No.P-80/1, Type-III, MES Pool, Palam, New Delhi vide order dated 16.04.2014. He was posted to various offices in New Delhi and finally to the office of Engineer-in-Chief (MES), New Delhi. He was given a Show Cause Notice dated 24.08.2020 which was re-sent on the request of the applicant, on 05.10.2020. A final notice for unauthorized occupation was also issued on 17.09.2020. The representation of the applicant dated 27.09.2020 was also rejected vide letter dated 06.10.2020 and it was indicated vide the said letter that the applicant was living in Ministry of Defence accommodation in an unauthorized manner since 2017.
It is the contention of the applicant that he is posted in the same station, i.e. New Delhi as when the allotment of the present accommodation was done, therefore the said allotment holds good. He has filed letter dated 10.11.1994 of Dakshin Kaman Mukhayalaya by which it is stated that once accommodation has been allotted to Defence civilians, they will not normally be asked to vacate it, if exigencies of service so demand, they will be shifted to alternative accommodation appropriate to their status. As per the applicant, no alternative accommodation has been allotted to him. He has also pointed out that two employees namely Mr. Rajesh Punia and Mr. Rajan Lal are not entitled to the accommodation they are staying and they have not been asked to vacate. Furthermore, he has also questioned the authority who has passed the orders Sh. K. Hombaiah, stating that he is posted in Gurgaon and retains his accommodation in Palam.
The applicant has prayed for the following reliefs:-
“(i)That the Hon’ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 17.09.2020 (Annex.A/1), declaring to the effect the same is illegal, arbitrary and against the principle of natural justice and consequently, pass an order directing the respondents to allow the applicant to retain his quarter No.P/80/1 Type-III, Palam, New Delhi till his posting in New Delhi.
(ii)Any other relief which the Hon’ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.”
The respondents have strongly denied the claims of the applicant. They have stated that it was clearly mentioned in the allotment letter dated 16.04.2014 that ‘this allotment is valid only for the present tenure at AGE AF Palam and on the expiry of the aforesaid allotment, he will be deemed to be an unauthorized occupant’. They have also stated that the letter filed by the applicant dated 10.11.1994 is valid only for Southern Command and is a local circular. Furthermore, the applicant has not applied for alternative accommodation. They have also stated that the two persons Mr. Rajesh Punia and Mr. Rajan Lal are posted on the strength of Garrison Engineer (P) Air Force, Gurgaon and are permanent industrial employees working in the area of jurisdiction in 13 BRD AF Palam, Delhi Cantt. Therefore, they are not unauthorized occupants of the campus of 13 BRD AF, Palam. They have denied any bias and stated that vide letter dated 27.07.2020 not only the applicant but two other employees, Mr. Om Prakash and Mr. Ashok Kumar Meena, were also given show cause notices for vacation of the premises which they were occupying. They have given details of the areas of jurisdiction of various allotment authorities, from which it emerges that civilian officials working in Engineer-in-Chief Branch, New Delhi are to be allotted accommodation by the Directorate of Estates while officials who are working in various other offices in Delhi are allotted accommodation by various functionaries under the Ministry of Defence (MOD). Those working in HQ CWE (AF), Tughlakabad jurisdiction including GE (AF) Tughlakabad and GE(P) AF, Gurgaon, are allotted accommodation by CWE (AF), Tughlakabad, GE (AF) or GE (P) AF, Gurgaon on their pool. They have thus sought to make a distinction in the allotting authorities and entitlement for accommodation from different pools to officers posted to various offices in New Delhi, to the effect that where the accommodation in question was allotted by functionaries under MOD, now the applicant can only get accommodation allotted by Ministry of Housing and Urban Affairs. The respondents have also stated that as per SRO 308/1978 the applicant has to vacate the premises if transferred out from one jurisdiction to another. The respondents have further clarified that Sh. Hombaiah continues to look after 13 BRD AF which is in charge of the accommodation where the applicant and Sh. Hombaiah reside.
Heard Sh. Yogesh Sharma, learned counsel for the applicant and Sh. Satish Kumar, learned counsel for the respondents, and perused the record.
The very first document of note is the allotment letter dated 16.04.2014. It has the following clause:-
“4.This allotment is valid only for the present tenure at AGE AF Palam. On the expiry of aforesaid allotment you will be deemed to be an unauthorized occupant and liable for eviction/charging of damages, as provided by the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and action as deem fit will be initiated.” From the above it is clear that the allotment was valid only for the applicant’s tenure at AGE AF Palam and after change of his assignment, if he continues to stay in the said premises he would be an unauthorized occupant and liable for eviction/charging of damages. This letter of allotment and its terms were accepted by the applicant and he did not demur for six years.
Rule 2 (n) of the Allotment of Residences (Defence Pool Accommodation for Civilians in Defence Services) Rules, 1978 [hereinafter referred to as ‘Allotment Rules’] states the following:-
“2(n). “Transfer” means a transfer from one station to another station or from an eligible office to an ineligible office in the same station and includes a transfer or reversion to service under a State Government or Union Territory Administration and also deputation to a post in an ineligible office or organization.” From the above rule, it is clear that even if an official is posted in New Delhi itself but has moved from an eligible office to an ineligible office then it is treated as a transfer. Read with the letter of allotment, the applicant’s transfer to the Engineer-in-Chief establishment was an ‘ineligible’ office, where allotment of accommodation was under the Ministry of Housing and Urban Affairs and not MOD. Furthermore, Rule 8 of the Allotment Rules, reads as follows:-
8. Period for which allotment subsists and the concessional period for further retention:-
(1)An allotment shall be effective from the date of which it is accepted by the officer and shall continue in force until:-
(a)The expiry of the concessional period permissible under sub-rule (2) after the officer cease to be on duty in an eligible office at that station;
(b)It is cancelled by the Allotting Authority or is deemed to have been cancelled under and provision in these rules;
(c)It is surrounded by the officer; or
(d)The officer ceases to occupy the residence.
(2)A residence allotted to an officer any subject to sub rule (3) be retained on the happening of any of the events specified in column (1) of the Table below for the period specified in the corresponding entry in column (2) thereof, provided that the residence is required for the bona-fide use of the officer or members of his family:
TABLE
Events Permissible period for retention of residence (i) Resignation, dismissal or removal from service, termination of service or unauthosed absence without permission. 1 month (ii) Retirement or terminal leave 2 months on normal licence fee and another 2 months on double the normal licence fee (iii) Death of the allottee 12 months (iv) Transfer to another military station 2 months (v) Transfer to an ineligible office at the same station 2 months (vi) On proceeding on foreign service in India 2 months (vii) Temporary transfer in India or transfer to a place outside India 4 months (viii) Leave (other than leave preparatory to retirement, refused leave, terminal leave medical leave, maternity leave or study leave) For the period of leave but not exceeding four months. For the period of maternity leave plus leave granted in continuation subject to a maximum of five months. (ix) Leave preparatory to retirement or refused leave granted under FR 86 or Earned leave granted to Govt. servant who retired under FR 56(i) For the full period of leave on full average pay subject to a maximum 180 days in the case of leave preparatory to retirement and four months in other cases, inclusive of the period permissible in the case of retirement. (x) Study leave in or outside India a. In case the officer in occupation of accommodation below his entitlement, for the entire period of study leave.
b. In case the officer is in occupation of his entitled type accommodation for the period of study leave but not exceeding six months provided that where the study leave extends beyond six months he may be allotted alternative accommodation, one type below his entitlement on the expiry of six months or from the date of commencement of the study leave if he so desires.
(xi) Deputation outside India For the period of deputation but not exceeding six months. (xii) Leave on medical grounds Full period of leave (xiii) On proceeding on training For full period of training (xiv) Transfer during the middle the academic year of their children. Upto six months beyond the permissible period of 2 months or till the end of the School or college academic year of their children, which ever is earlier, on payment of double the [normal licence fee]” From the said rule, it is clear that the applicant ceased to be on duty in an eligible office after he was transferred to the Engineer-in-Chief’s office. As per Clause (v) of the Table, after being transferred to an ‘ineligible’ office at the same station, permissible period for retention of accommodation is two months. Therefore, after this period he is squarely an unauthorized occupant. The applicant cannot derive any benefit from the letter of HQ Southern Command dated 10.11.1994 since he is clearly not eligible to continue in the said accommodation as per the rules. The respondents have also stated that the applicant has not even applied for alternative accommodation so he cannot now claim that when he is asked to vacate the said accommodation, he should be provided an alternative accommodation. However, learned counsel for the applicant has stated across the bar that the applicant applied to the Directorate of Estate, under the Ministry of Housing and Urban Affairs for allotment of suitable accommodation. A point to note is that the Directorate of Estates has not been made a party in this OA by the applicant.
From the reply of the respondents, it is also clear that no discrimination has been done with the applicant since not just the applicant but two other officials were asked to vacate accommodation they were occupying vide letter dated 27.07.2020. The explanation given by the respondents that the cases of the two industrial employees Mr. Rajesh Punia and Mr. Rajan Lal are distinct from that of the applicant, also seems to be in order. In any case two wrongs would not have made a right. It is also noted that the respondents issued several notices to the applicant and gave him due opportunity before initiating any action against him.
However due to the hardships caused by the Covid-19 pandemic, Ministry of Housing and Urban Affairs has given a one time relaxation to allottees of GPRA accommodation, which includes unauthorized occupants, as per its order No.12035/2/2020-Pol.II dated 13.05.2021 and has permitted retention of accommodation upto 30.06.2021. Though the said accommodation occupied by the applicant is allotted by MoD, but in the peculiar circumstances of the pandemic he may be given time till 30.06.2021 to vacate.
In light of the above, I am of the view that this OA has no merit. However, if the applicant vacates the said premises as per afore mentioned para 9 and applies for alternative accommodation, the respondents may consider the same in a time bound manner. The OA is dismissed. There shall be no order as to costs.