Mrs. Asha Sharma Vs. Chandigarh
Administration & Ors.
J U D G M E N T
Swatanter Kumar, J.
present appeal is directed against the judgment dated 16th May, 2011 of the High
Court of Punjab and Haryana at Chandigarh whereby the Division Bench stayed the
operation of the directions issued by the learned Single Judge in the order dated
10th March, 2011 and referred the matter to a larger Bench keeping in view the nature
of the dispute and its significance.
Court had issued directions on the same subject matter and approved the draft
rules which were placed before it vide judgment dated 7th May, 1996 in Civil
Appeal No. 8890 of 1996. Keeping in view the importance of the issues raised and
the likelihood of such issues arising repeatedly before the High Court, this
Court had issued notice vide order dated 3rd June, 2011, declined to pass any interim
order and directed that the matter be listed for final hearing at that stage itself.
Resultantly, this matter was finally heard by this Court.
we dwell upon the legal issues arising in the present appeal, it will be
necessary for us to refer to the basic facts giving rise to the same. The appellant
is an officer belonging to the Indian Administrative Services and had been allocated
to the Haryana Cadre. She was allotted House No. 55, Sector 5, Chandigarh vide
order dated 11th October, 1996, when her husband was posted on deputation to the
Government of India. She retired from service on 28th February, 2007.
As per the Government
Residences (Chandigarh Administration General Pool) Allotment Rules, 1996 which
has been amended from time to time, (hereinafter referred to as `the Allotment
Rules'), she was entitled to retain the Government accommodation previously allotted
to her while she was in service for a period of four months with further possible
extension upto six months, in terms of Rule 13 of the Allotment Rules. This extension
could be granted only in exceptional cases. In other words, she ought to have vacated
the residential premises allotted to her by 31st December, 2008.
31st December, 2007, the appellant was appointed as the State Information Commissioner
with effect from 3rd January, 2008. As per her terms of appointment, she was entitled
to Government accommodation and salary/ allowances of the same type and amount
as were given to the Chief Secretary to the Government of Haryana. She had applied
to the authorities concerned requesting for allotment of the same accommodation,
i.e., House No.55, Sector 5, Chandigarh to her, but her request had not been accepted.
Proceedings for eviction began against her before the Estate Officer.
The Estate Officer
vide his order dated 9th April, 2008 declared the appellant an unauthorised
occupant and passed an order of eviction on 16th April, 2008. Aggrieved by the
said order, the appellant preferred an appeal before the Additional District Judge,
Chandigarh which, however, came to be dismissed vide order dated 22nd October,
2008. This order of the Appellate Authority was challenged by the appellant through
a writ petition in the High Court of Punjab and Haryana being Writ Petition No.
20252 of 2008. In this writ petition, the contention raised by the appellant
was that she, in the capacity of an officer of the Administrative Service and later,
on becoming the State Information Commissioner, was entitled to retain the accommodation
previously allotted to her.
It was contended that
she was being evicted from the premises illegally, without authorization and in
an illegal manner. The learned Single Judge of that Court vide order dated 10th
March, 2011, passed certain general directions in relation to the procedure for
allotment of Government houses, their retention and various other aspects
relating thereto. The learned Single Judge modified the order dated 1st December,
2008 passed by the Division Bench when the writ came up for hearing before the
Single Judge qua the appellant and directed that as soon as any alternate accommodation
is allotted to her, as per her entitlement under the Rules, she shall, within two
weeks of such allotment, vacate the house presently under her occupation.
Further, he directed
the concerned authorities to sympathetically consider the case of the appellant
for waiving of any penal rent imposed upon her and that no such penal rent would
be payable till the Administrator of U.T. Chandigarh makes his decision in this
regard. However, besides granting these reliefs to the appellant, the Court
also passed the following directions :
4"Having heard Dr.
Dhemka IAS in person and learned Senior Standing counsel for UT. Administration
and keeping in view the fact that a number of Government houses kept un-allotted
under the orders of this Court serve no one's purpose and rather their condition
is deteriorating for want of proper up-keep and maintenance, the interim order dated
14.12.2009 is modified and the Chandigarh Administration is permitted to allot the
vacant houses to the eligible applicants, subject to the following conditions/
(i) No allotment shall
be made in exercise of the discretionary powers of the Administrator, UT., or Chief
Ministers of Punjab and Haryana.
(ii) No house shall be
allotted `out of turn' without prior permission of this Court.
(iii) No house shall be
`earmarked' for any particular office/officer till the earlier `earmarked' house
which were subsequently `de-earmarked' and allowed to be retained by the officers,
who were not entitled to such allotment as their seniors in terms of pay, rank
or status were still awaiting allotment of that Type or above houses, are got vacated
except in the case of the SSP, Chandigarh in relation to whom one time concession
has been granted vide order dated 07.03.2011.
(iv) A list of the `prospective
allottees' shall be prepared and displayed on the websites of the Chandigarh
Administration two weeks in advance inviting objections, if any, from the aggrieved
officers/officials who might assert their preferential claim. It is only after considering/deciding
their objections that the allotment letters shall be issued.
(v) The list of the prospective
allottees shall be placed before this Court also on the adjourned date and any aggrieved
officer/official shall be entitled to submit objections thereto;
(vi) A public notice
of the information at Sr. Nos. (iv) and (v) above shall be got published by the
Chandigarh Administration at least in two daily newspapers;
(vii) No further `addition'
of the houses shall be made to the discretionary quota of the Chief Ministers of
Punjab and Haryana nor the possession of the vacant houses exceeding the said quota,
as it exists today, shall be given to the allottees.
(viii) An order of precedence
amongst the functionaries of Constitutional, Statutory and Executive Authorities
shall be prepared and placed before the Court on the adjourned date."
by the directions issued by the learned Single Judge, as afore-noticed, Chandigarh
Administration preferred an appeal before the Division Bench of that Court being
LPA No. 752 of 2011 which resulted in the order dated 16th May, 2011, whereby
the Court stayed the directions of the learned Single Judge and directed the
matter to be heard by a larger Bench. The basic contention raised before the
Division Bench was that since the prevalent Allotment Rules had been framed
with the approval of this Court as per its order dated 7th May, 1996, no
directions contrary thereto could be issued by the learned Single Judge. A
somewhat similar argument is also raised before us in the present appeal.
is an undisputed position, which also appears from 6the record, that a Full
Bench of the High Court of Punjab and Haryana, in Writ Petition No. 16863 of
1994 entitled Court on its own motion v. Advisor to the Administration, U.T. Chandigarh
& Ors. had noticed the arbitrariness in the practice of allotment of houses
in the Union Territory of Chandigarh (hereinafter referred to as `U.T., Chandigarh').
It was noticed in that judgment that the allotments were being made contrary to
the earlier Allotment Rules. The Bench struck down Rule 7 of the earlier Allotment
Rules, that had been in force at the relevant time, as arbitrary, quashed certain
allotments made in favour of the officers and issued certain directions vide
its judgment dated 1st June, 1995. The Chandigarh Administration had preferred an
appeal before this Court against this judgment which, as already noticed, was
registered as C.A. No. 8890 of 1996 and finally disposed of vide order dated 7th
May, 1996. A three Judge Bench of this Court had set aside the order of the
High Court and approved the draft rules which were placed before it. This Court
in its judgment also directed certain amendments to be carried out to the draft
rules particularly Rules 2(k), 4 and provisos to Rules 13 and 19. In furtherance
to this, the Chandigarh Administration issued a notification dated 28th June, 1996
duly publishing the Allotment Rules of 1996 with which we are 7concerned in
this case. This Court had granted liberty to the Chandigarh Administration to carry
out amendments to the Allotment Rules, if necessary. These Allotment Rules were
thereafter amended from time to time, but the Allotment Rules of 1996 still
substantially remain in force till date.
allotment of government accommodation is governed by the statutory regime and
the Allotment Rules are concerned with various facets of this concept. The Allotment
Rules of 1996 cover concepts such as allotment, vacation, cancellation and preferential
allotments of government accommodations. Despite the fact that the Allotment Rules
are in force their proper implementation still remains an elusive endeavour. The
grievance of the officers/officials has still persisted with regard to the manner
in which the discretion under the Rules were being exercised. In other words,
the element of discretion vested under these rules has caused serious dissatisfaction
with the implementation of these Allotment Rules.
in State action can be demonstrated by existence of different circumstances. Whenever
both the decision making process and the decision taken are based on irrelevant
facts, while ignoring relevant considerations, such an action can normally be termed
as `arbitrary'. Where the process of decision making is followed but proper
reasoning is not recorded for arriving at a conclusion, the action may still fall
in the category of arbitrariness. Of course, sufficiency or otherwise of the reasoning
may not be a valid ground for consideration within the scope of judicial
review. Rationality, reasonableness, objectivity and application of mind are some
of the pre-requisites of proper decision making. The concept of transparency in
the decision making process of the State has also become an essential part of
our Administrative law.
Government is entitled to make pragmatic adjustments and policy decisions,
which may be necessary or called for under the prevalent peculiar circumstances.
The Court may not strike down a policy decision taken by the Government merely because
it feels that another decision would have been more fair or wise, scientific or
logical. The principle of reasonableness and non-arbitrariness in governmental action
is the core of our constitutional scheme and structure. Its interpretation will
always depend upon the facts and circumstances of a given case. Reference in this
regard can also be made to Netai Bag v. State of West Bengal [(2000) 8 SCC
by the State, whether administrative or executive, has to be fair and in
consonance with the statutory provisions and rules. Even if no rules are in force
to govern executive action still such action, especially if it could potentially
affect the rights of the parties, should be just, fair and transparent. Arbitrariness
in State action, even where the rules vest discretion in an authority, has to
be impermissible. The exercise of discretion, in line with principles of fairness
and good governance, is an implied obligation upon the authorities, when vested
with the powers to pass orders of determinative nature.
The standard of fairness
is also dependant upon certainty in State action, that is, the class of persons,
subject to regulation by the Allotment Rules, must be able to reasonably
anticipate the order for the action that the State is likely to take in a given
situation. Arbitrariness and discrimination have inbuilt elements of uncertainty
as the decisions of the State would then differ from person to person and from situation
to situation, even if the determinative factors of the situations in question were
identical. This uncertainty must be avoided. The Allotment Rules have been framed
with the approval of this Court and thereafter have been amended by the State
Government with the intention to give some clarity and certainty to the implementation
of the Allotment Rules, rather than subjecting it to further challenge on the ground
of arbitrariness or discrimination.
A Government servant has
a reasonable expectation of being dealt with justly and fairly in receiving
rights that are granted to him/her under the Allotment Rules. Allotment of Government
accommodation is one of the statutory benefits which a Government servant is
entitled to under the Allotment Rules and, therefore, fair implementation of these
Rules is a sine qua non to fair exercise of authority and betterment of the employee-employer
relationship between the Government servant and the Government.
public law principles controlling the administrative actions of the public authorities
are well settled. Right from the case of Ramana Dayaram Shetty v. International
Airport Authority of India [(1979) 3 SCC 489] this Court cautioned that
conditions of work cannot be arbitrarily altered and held that even the power of
relaxation has to be exercised within the limited scope available, failing which,
it would tantamount to denial of opportunity to employees.
settled principle of law, applicable to the present case, is the scope of judicial
review of such actions, which is usually quite limited. The Court has the power,
11depending on the facts and circumstances of a given case, to issue appropriate
directions in exercise of jurisdiction under Article 226 of the Constitution of
India (by the High Court) and under Article 32 read with Article 141 of the Constitution
of India (by this Court).
the case of E.S.P. Rajaram and Ors. v. Union of India and Ors. [(2001) 1 SCR 203],
this Court explained that the source of power of this Court to issue directions
and pass the orders, as was explained in paragraph 18 of the case titled Union of
India & Ors. vs. M. Bhaskar & Ors. [(1996) 4 SCC 416], could be traced to
Article 142 of the Constitution of India. This provision vests power in this Court
to pass such decree or make such orders as would be necessary for doing complete
justice in the context of any case or matter pending before it.
contains no limitation which provides the causes or circumstances in which such
power may be exercised. The exercise of power is left completely to the discretion
of the highest Court of the country and its order or decree is thereafter binding
on all Courts or Tribunals throughout the territory of India. However, in the case
of Guruvayoor Devaswom Managing Committee vs. C.K. Rajan [(2003) 7 SCC 546]
this Court, while specifying the scope and 12ambit of the Public Interest Litigation,
clearly distinguished between the powers of the High Court under Article 226 of
the Constitution and the powers of this Court under Article 142 of the Constitution
and observed `[T]he Court would ordinarily not step out of the known areas of judicial
The High Courts
although may pass an order for doing complete justice to the parties, it does
not have a power akin to Article 142 of the Constitution of India'. Usefully, reference
can also be made to the judgment of this Court in the case of Reliance Airport
Developers (P) Ltd. v. Airport Authority of India and Ors. [(2006) 10 SCC 1], where
while considering the scope for judicial interference in matters of administrative
decisions, this Court held that it is trite law that exercise of power, whether
legislative or administrative, will be set aside if there is manifest error in the
exercise of such power or if the exercise of power is manifestly arbitrary. Courts
would exercise such power sparingly and would hardly interfere in a manner
which may tantamount to enacting a law.
They must primarily serve
to bridge any gaps or to provide for peculiar unforeseen situations that may emerge
from the facts and circumstances of a given case. These directions would be in force
only till such time as the competent legislature enacts laws on the same issue.
The high courts could exercise this 13power, again, with great caution and circumspection.
Needless to say, when the High Court issues directions, the same ought not to
be in conflict with laws remaining in force and with the directions issued by this
Court. In the case of Chandigarh Administration v. Manpreet Singh [(1992) 1 SCC
380] while dealing with a matter of admission to engineering colleges and
reservation of seats etc., this Court held as under: "11. Counsel for
Chandigarh Administration and the college (petitioners in SLP Nos. 16066 and 16065
of 1991) contended that the High Court has exceeded its jurisdiction in
granting the impugned directions.
He submitted that High
Court, while exercising the writ jurisdiction conferred upon by Article 226 of
the Constitution of India, does not sit as an appellate authority over the rule-making
authority nor can it rewrite the rules. If the rule or any portion of it was found
to be bad, the High Court could have struck it down and directed the rule-making
authority to re-frame the rule and make admissions on that basis but the High
Court could not have either switched the categories or directed that Shaurya
Chakra should be treated as equivalent to Vir Chakra. By its directions, the High
Court has completely upset the course of admissions under this reserved quota and
has gravely affected the chances of candidates falling in category 4 by downgrading
them as category 5 without even hearing them.
These are good
reasons for the categorisation done by the Administration which was adopted by
the college. 21. While this is not the place to delve into or detail the self-constraints
to be observed by the courts while exercising the jurisdiction under Article
226, one of them, which is relevant herein, is beyond dispute viz., while acting
under Article 226, the 14 High Court does not sit and/or act as an appellate authority
over the orders/actions of the subordinate authorities/tribunals. Its jurisdiction
is supervisory in nature. One of the main objectives of this jurisdiction is to
keep the government and several other authorities and tribunals within the bounds
of their respective jurisdiction. The High Court must ensure that while performing
this function it does not overstep the well recognised bounds of its own
is a settled canon of Constitutional Jurisprudence that this Court in the process
of interpreting the law can remove any lacunae and fill up the gaps by laying down
the directions with reference to the dispute before it; but normally it cannot
declare a new law to be of general application in the same manner as the Legislature
may do. This principle was stated by a Seven-Judge Bench of this Court in the
case of P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578].
a proper analysis of the principles stated by this Court in a catena of
judgments including the judgment afore-referred, it is clear that the courts
can issue directions with regard to the dispute in a particular case, but
should be very reluctant to issue directions which are legislative in nature. Be
that as it may, because of the new dimensions which constitutional law has come
to include, it becomes imperative for the courts in some cases, to pass
directions to ensure that statutory or executive authorities do not act arbitrarily,
discriminatorily or contrary to the settled laws. It was in light of these
principles that this Court, vide its judgment dated 7th May, 1996 set aside the
Full Bench Judgment of the High Court of Punjab and Haryana, brought into force
some appropriate rules and sought to ensure that the competent authority acted in
accordance with law and that it avoided total arbitrariness in allocation of government
houses to its officers and employees.
Once those rules have
come into force and were amended from time to time as per the leave granted by this
Court, in our considered view, it was not proper exercise of judicial discretion
and jurisdiction to pass directions, which were in direct conflict with the Allotment
Rules which were approved by in conflict this Court or with the directions which
were issued by this Court on earlier occasions. Shortly, we shall proceed to
discuss the scope and effect of the directions issued by the learned Single Judge
of the High Court, their correctness and impact upon the existing rules and the
lacuna, if any, which still exists in day-to-day implementation of the
the analysis of the above principles, it emerges that the Court would exercise its
jurisdiction to issue appropriate writ, order or directions with reference to
the facts and circumstances of a given case. Normally, the courts would not
step in to pass directions, which could, at times, be construed as a form of
legislation. Articles 32 and 226 of the Constitution confer on this Court and the
High Court the power to issue directions, orders or writs for achieving the objectives
of those Articles. The courts, in the past, have issued directions for various
purposes. In public interest, the courts may pass directions and even appoint committees
for inducing the Government to carry out the constitutional mandate. The courts
have been taking due care while exercising such jurisdiction so that they do not
overstep the circumscribed judicial limits.
light of the above legal framework, we would now revert to examine the legal
questions raised before us. There are primarily three issues which require the consideration
of this Court : The interpretation and enforcement of the Allotment Rules 1. framed
by Notification dated 28th June, 1996 and the amendments made to it from time
to time; The relevancy of the directions issued by this Court vide its 2. judgment
dated 8th December, 1995 ; and3. The conflict between the directions of this Court
and the Rules framed thereafter and the directions issued by the learned Single
Judge of the High Court of Punjab and Haryana.
would further be required to examine whether the Allotment Rules, as amended
from time to time, are in conflict with the earlier judgment of this Court or
whether they suffer from any basic legal infirmity or are ex facie arbitrary and,
if so, what directions could be passed to remedy such elements of arbitrariness,
particularly, in view of the directions issued by the learned Single Judge of
the High Court.
We may notice that during
the course of arguments before us, it was also pointed out that because the action
of the authorities in allotting two houses of the same category, one at
Chandigarh and the other outside Chandigarh (both within the State of Punjab and/or
Haryana) which is not permissible, great hardship and discrimination has been caused
to the employees placed in the same category. Secondly, it was also argued that
taking advantage of the time factor involved in the decision making by the Committee,
the officers allotted to higher category accommodation continue to retain both houses
i.e. one of a lower category and other of a higher category for an unnecessarily
long period, thus, causing prejudice to the interests of others.
For example, it is
alleged that in the case of the appellant, she is retaining the higher category
house and continues to hold such accommodation even now, when she is actually
entitled to an accommodation of lower category. However, according to the appellant,
as State Information Commissioner also, she is entitled to the same accommodation
and perks that the Chief Secretary of the State is entitled to. It is argued on
behalf of the appellant that there is no transparency in the functioning of the
Allotment Committee. According to the respondents, she will not be entitled to
retain an earmarked accommodation.
is also contended on behalf of different parties that arbitrariness in
allotment of houses still persists. There is no need for adding houses to the Chief
Minister's pool and increasing the discretionary quota. It is the claim of the appellant
that the imposition of damages/charges on her is arbitrary and she is entitled to
retain the same accommodation. First and foremost, we have to consider the nature
of the changes in the Allotment Rules as approved by this Court, whether such
changes are disadvantageous to the government servants and whether they increase
the arbitrariness in the implementation of the Allotment Rules.
We have already
noticed that the rules in force at the relevant time were the subject matter of
controversy before the Full Bench of the High Court of Punjab and Haryana and
had given rise to filing of a Special Leave Petition (converted into C.A. No. 8890
of 1996). It was in this petition that the draft rules had been filed, approved
with certain amendments, as directed by this Court and thereafter published
vide Notification dated 28th June, 1996, to finally result in the Allotment Rules.
These rules were also subjected to different amendments from time to time and
major amendments were carried out in the years 1997, 1998, 2004, 2007 and 2009.
Besides these, certain guidelines were also framed which became part of the Allotment
related to changes in the definition clauses as well as the substantive rules. For
example, Rule 7, which is related to the earmarking of houses was amended on 7th
May, 1998; Rule 8, concerning the Controlling Authority was amended vide
Notification dated 2nd June, 1997; Rule 11, which related to Out-of-Turn Allotment,
was amended vide Notifications in 1997 and again vide Notification dated 4th August,
2004; Rules 13 and 14 relating to the period for which allotment subsists and concessional
period for further retention and fixation of licence fee were amended by
different amendments including those dated 17th December, 2009 and 11th October,
These amendments have
to be examined in light of the fact that this Court granted leave vide its
judgment dated 7th May, 1996 to the Chandigarh Administration to amend the rules,
as and when it considered such amendment necessary. The leave granted by this Court
obviously means that the amendment should be necessity based and not be intended
to introduce the element of arbitrariness or discrimination in the rules and resultantly
in the allotment of the houses to the government officers/ officials.
stated the aforementioned principles, we will now proceed to discuss the scope and
desirability of the directions issued by the learned Single Judge of the High Court
of Punjab and Haryana. The learned Single Judge, while dealing with the case of
the present appellant, issued certain general directions with regard to Out-of-Turn
Allotment, the addition and earmarking of houses, allotment of discretionary quota
and the Chief Minister's quota, instances of allotment of two houses to one
officer, the display of lists of 21prospective allottees on the website and the
drawing up of an order of precedence amongst the Constitutional, Statutory and Executive
functionaries. The Court issued prohibitory orders as well. All these
directions had been stayed by the Division Bench of that Court in an appeal
preferred by the Chandigarh Administration.
already noticed, fairness in State action is the essence of proper governance. Where
the authorities exercise their powers under the rules, they are expected to
exercise the discretion vested in them fairly and with the intention to attain a
balance between exercise of discretionary power and the larger public interest
sought to be achieved by such discretion. Arbitrariness or irresponsible exercise
of the power vested in the authorities, has been a matter of great concern
before the courts.
The Full Bench of
High Court of Punjab and Haryana had declared Rule 7 of the Allotment Rules of 1972
as unconstitutional and being without any proper guidelines because the possibility
of exercising unguided power resulted in arbitrariness on various occasions. Though
that judgment had been set aside by this Court, surely it was still expected that
the draft rules, as approved by this Court, would be acted upon fairly and without
arbitrariness. However, the matters 22have not ended with the implementation of
the new rules and, therefore, litigation in respect of these rules has been a continuous
affair. The matter, which can be said to be of some public importance is not a
question of the interpretation of the Allotment Rules as such, but is one of the
manner of exercise of power with reference to the Allotment Rules.
7 of the Allotment Rules, which deals with the creation of pools of residences,
provides for earmarking of houses for specified officers from different branches
of the State Administration and those houses which have not been so earmarked for
any particular class of Government employees would be allotted to the general pool
of the Chandigarh Administration. This Rule and its sub-Rules read together do not
suffer from the vice of arbitrariness, as earmarking of houses is a known concept
in relation to allotment of houses. The learned Single Judge of the High Court of
Punjab and Haryana has given a clarificatory direction that when earmarked houses
are occupied by an officer, who is at that time not entitled to that house,
another house would not be earmarked for any particular officer, until the
occupied house is vacated.
One exception is
carved out in favour of SSP, Chandigarh in terms of order dated 7th March, 2011.
We do not think that this clarificatory direction is violative of any rule or is
otherwise impermissible. These directions attempt to ensure that there should not
be more than one earmarked house for the same post as per the need. This clarification
or explanatory direction would also ensure timely vacation of the earmarked houses
by the officers concerned, upon their transfer, promotion or posting to a post where
they are not entitled to an earmarked accommodation.
Thus, we see no
reason to interfere with imposition of such a condition which is in conformity
with the spirit of the aforesaid Rule. We, thus direct that no new house for any
category/post should be earmarked unless the house already earmarked for such category/post
has been vacated and placed in the general pool of the Chandigarh Administration
for allotment in accordance with the Allotment Rules.
next direction to which certain objections were raised by the parties appearing
before this Court is with regard to Out-of-Turn Allotment and allotment of
houses in exercise of the discretionary powers of the Administrator, U.T., Chandigarh
and the Chief Minister of Punjab and Haryana respectively. At the outset, it
may be noticed that there is no specific rule controlling the discretionary allotment
by the Administrator, U.T., Chandigarh and the Chief Minister of State of Punjab
and Haryana respectively.
However, Rule 8 identifies
the Controlling Authority which is the Administrator, U.T. Chandigarh, who would
be the co-ordinating and controlling authority in respect of the houses belonging
to Chandigarh Administration. He has been given the power to add or withdraw houses
from any pool for the purposes of allotment to any class or category of eligible
government employees and may also change the classification of houses on the
recommendation of the House Allotment Committee. Rule 11 deals with Out-of-Turn
Allotments, i.e. the House Allotment Committee may allot a house on Out-of-Turn
basis to the cases specified under clauses (a) to (g) of that Rule. The House Allotment
Committee in its Meeting dated 27th March, 2003 has further approved certain guidelines
for the Out-of-Turn Allotments.
11 is a very comprehensive rule which deals with the specific situations where Out-of-Turn
Allotment is permissible. The Allotment Rules and these guidelines are intended
to control the exercise of discretion by the authorities concerned in granting out-of-turn
allotments. There is some vagueness in Rule 11(1)(e), i.e. Out-of-Turn Allotments
to a 25government employee due to the `functional requirements' of the post. This
expression is neither explained nor have any guidelines been issued in this
regard. The criteria provided in Guideline (2) for allotments made in public
interest under Rule 11(1)(f) is quite similar to the criteria for determining functional
requirements. Both these heads refer to the nature of official duties and functions
to be performed by the officer concerned.
Thus, the category of
`functional requirement' allotment is nothing but a category created to allow
more and more allotments under this head. In light of these rules, the absolute
restriction on Out-of-Turn Allotments imposed by the learned Single Judge may not
be just and fair and will be opposed to the statutory provisions of the Allotment
Rules. Therefore, we are unable to sustain such a restriction. However, we would
further clarify that the powers vested in the concerned authority under Rules 8
and 11 of the Allotment Rules will only be exercised:
recommendation of the House Allotment Committee;
recommendation should be supported by reasons with the requirements of the job
and the data in support thereof; and
(c) no allotments would
be made under the provisions of Rule 11(1)(e). The maximum restriction of 10 per
cent of all allotments being Out-of-Turn Allotments, as contemplated under Rule
11(2) of the Allotment 26Rules, shall be operative to entire Rule 11 as well as
to Rule 8 of the Allotment Rules. In no event shall Out-of-Turn Allotment exceed
10 per cent of all houses allotted in a year. This is primarily to control the
exercise of discretionary power as well as to ensure that the persons entitled to
residential accommodation in the general pool are not made to wait unduly for
an indefinite period.
under different categories and with the restrictions as stated in the Allotment
Rules and the guidelines shall continue to be in force and should not be amended
or altered except in exceptional circumstances by the appropriate body. This alone
can add some certainty to the application of these provisions and to the expectations
of the government employees, who have a legitimate expectation of allotment of
government accommodation as part of their perks.
also direct that the purpose of Rule 8 of the Allotment Rules is not to allow discretionary
allotment but is to provide overall powers of coordination and control to the Administrator,
U.T., Chandigarh. When the words `for the purposes of allotment to any class or
category of eligible government servant' appearing in Rule 8 are examined,
these have to necessarily be construed to mean the allotment made 27in terms of
the Allotment Rules. Adding or withdrawing houses to the general pool is a
power vested in the authority under Rule 8, but allotments still are to be made
in accordance with the substantive rules enabling the authorities to make
the judgment of this Court passed in Civil Appeal No. 8890 of 1996 nor the
Allotment Rules duly notified by the Government, require publishing of list of prospective
allottees on website and inviting objections to the same. Rule 9 of the Alltoment
Rules requires the authorities to invite applications for allotment of
accommodation and also provides the manner in which the allotment of houses is to
be made including showing the seniority of the applicants category-wise. There
is no provision requiring invitation of objections. Once there is no rule, in
our considered view, it will not serve any fruitful purpose to invite objections
to each allotment apart from unnecessarily delaying allotments and rendering the
working of the Rules more complex and difficult. Further, Rule 9(5) of the Allotment
Rules is a complete safeguard in regard to proper maintenance of the seniority list
of the applicants. Thus, we set aside the directions issued by the learned Single
Judge in that behalf. However, we direct that the final list of allotments made
by the House Allotment Committee should be placed on the website of the Government,
as all interested persons would be entitled to know whether they have been allotted
the accommodation or not.
we will deal with the other two arguments that were raised before us. One argument
was in regard to the allotment of two houses to a single officer and/or to his
family, one in Chandigarh and one in some other part of the same State; and the
second was regarding the period of retention of the allotted house after the employee
is retired, promoted, transferred or is sent on deputation etc. These are
matters of serious concern. There is no rule that has been brought to our notice
or is available on the records providing that an officer who is posted outside Chandigarh/Panchkula/Mohali
and whose spouse is not entitled to any Government accommodation of any category
can be provided with two houses, one at the District/Division level to which he/she
is transferred and another at Chandigarh and its adjourning areas.
In absence of any such
specific rule, we consider it appropriate to direct that the State shall not
allot two different houses to one government servant. In terms of Rule 11(1)(b)
of 29the Allotment Rules, such allotment can be made in some circumstances but we
are constrained to observe that every effort should be made to ensure that such
situations arise only in exceptional circumstances. We are informed that even under
the rules of transfer of the Government servant, a married couple, both of whom
are government servants are normally posted at the same place. Be that as it
may, it will be in the interest of all concerned that Rule 11(1)(b) is invoked sparingly
and only by the authorities concerned, upon the recommendation of the House
issue with regard to the retention of government accommodation is controlled by
Rule 13 of the Allotment Rules. The table under clause 2 of the said Rule provides
different periods of retention in different situations. Rule 13, sub-rule 5 further
carves out an exception, allowing the period of retention to be extended beyond
the period stated in the table under Rule 13(2) of the Allotment Rules on payment
of higher licence fee. We see no reason why a government servant should be permitted
to retain the accommodation beyond 4 to 6 months, which period is permissible
under the substantive rules. A government servant knows in advance the period within
which he has to vacate the accommodation 30allotted to him as part of his employment
and so he has to surrender the house in question within the scheduled time.
exceptional cases are contemplated under Rule 13(5) of the Allotment Rules is nowhere
indicated. No guidelines are provided and it is only for the authorities concerned
to decide whether the case falls in that category or not. We are unable to see any
compelling circumstances for permitting discretion to the authorities under
Rule 13(5) of the Allotment Rules. Rules 13(1) and 13(2) are comprehensive, specific
and provide more than reasonable time for a government servant to vacate the accommodation
allotted to him/her. The Court cannot lose sight of the fact that a large number
of employees under different categories are awaiting their allotments and are
being deprived of this benefit for long periods because of excessive invocation
of such discretionary powers. The provision is unguided and arbitrary and cannot
stand the scrutiny of law. More so, the licence fee indicated is obviously minimal
in comparison to the market rent for the said premises. It is a matter which a Court
can safely take judicial notice of.
by these circumstances, we find Rule 13(5) not sustainable and the authorities are
directed not to take recourse to the said provision under any circumstance. No case
of retention of government accommodation beyond the periods specified in the table
to Rule 13(2) of the Allotment Rules shall be entertained by any authority under
the Allotment Rules.
have issued the above directions being conscious of the fact that the Allotment
Rules are in place and that the authorities are acting fairly and judiciously. The
directions that we have issued are primarily explanatory and are intended to narrow
the scope of discretion exercisable by the concerned authorities. It is a
settled canon of Administrative Jurisprudence that wider the power conferred, more
onerous is the responsibility to ensure that such power is not exercised in
excess of what is required or relevant for the case and the decision.
expect the authorities to be consistent in their decisions and bring certainty
to the Allotment Rules. This can only be done by making fair, judicious and
reasoned decisions on the one hand and refraining from amending the Allotment Rules
except in exceptional and extraordinary circumstances on the other. The
Doctrine of Certainty can appropriately be applied to legislative powers as it is
applicable to judicial pronouncements.
We must not be
understood to say that the power of the Legislature to amend rules is restricted
by judicial pronouncements, but we want to impress upon the Legislature that the
rules of the present kind should not be amended so frequently that no
established practice or settled impression may be formed in the minds of the employees.
Where the employer has limited resources, there the employee has a legitimate expectation
of being dealt with fairly in relation to allotment to such government accommodation.
Consequently, reverting to the case of the appellant, she is admittedly occupying
an earmarked house.
An order of eviction and
damages has been passed against her and she has taken recourse to an
appropriate remedy or against which she has already taken an appropriate
remedy. The matter in that behalf is still pending final hearing before the learned
Single Judge. The parties are left to raise all their contentions before the learned
Single Judge, who shall decide the matter in accordance with law. However, with
regard to the interim order passed by the High Court, we direct the State to
allot to her an alternative accommodation under the category which she is entitled
to, in pursuance of her appointment as State Information Commissioner, within
fifteen days from today and she shall be liable to vacate the accommodation presently
in her occupation within two weeks thereafter.
We make it clear that
in the event the Government is unable to allot her an alternative accommodation
of her category for the reason of non-availability of such accommodation, she should
be provided with appropriate accommodation, including private accommodation of
her status, within the same period.
appeal, for the reasons afore-recorded and with the directions afore-given, is disposed
of while leaving the parties to bear their own costs.
[Dr. B.S. Chauhan]