Asha Sharma vs Chadigarh Administration & Ors

Mrs. Asha Sharma ... Appellant

Versus

Chandigarh Administration & Ors. ... Respondents

J U D G M E N T

Swatanter Kumar, J.

1. Leave granted.

2. The 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.

3. This Court had issued directions on the same subject

matter and approved the draft rules which were placed before

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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.

4. Before 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

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only in exceptional cases. In other words, she ought to have

vacated the residential premises allotted to her by 31st

December, 2008.

5. On 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,

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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 :

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"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/ directions:

(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;

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(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."

6. Aggrieved 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.

7. It is an undisputed position, which also appears from

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the 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

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concerned 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.

8. The 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.

9. Arbitrariness 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

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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.

10. The 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 262].

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11. Action 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

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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.

12. The 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.

13. Another 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,

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depending 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).

14. In 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. This provision 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

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ambit 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 review. 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

13

power, 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

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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 jurisdiction."

15. It 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].

16. On 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

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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 Allotment Rules.

17. On the analysis of the above principles, it emerges

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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.

18. In 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;

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The relevancy of the directions issued by this Court vide its

2.

judgment dated 8th December, 1995 ; and

3. 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.

19. We 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

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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.

20. It 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

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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 Rules. These amendments 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

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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, 2007 respectively. 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.

21. Having 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

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prospective 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.

22. As 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

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have 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.

23. Rule 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,

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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.

24. The 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

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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.

25. Rule 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

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government 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: (a) upon recommendation of the

House Allotment Committee; (b) such 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

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Rules, 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.

26. Allotments 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.

27. We 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

27

in 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 regular allotments.

28. Neither 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

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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.

29. Now, 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

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the 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 Allotment Committee.

30. The 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

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allotted to him as part of his employment and so he has to

surrender the house in question within the scheduled time.

31. What 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.

32. Compelled by these circumstances, we find Rule 13(5)

not sustainable and the authorities are directed not to take

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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.

33. We 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.

34. We 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

32

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

33

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.

35. The appeal, for the reasons afore-recorded and with

the directions afore-given, is disposed of while leaving the

parties to bear their own costs.

.....................................J.

[Dr. B.S. Chauhan]

....................................J.

[Swatanter Kumar]

New Delhi

August 30, 2011

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