WA/86/2009 of K. Hemalatha Vs Government of Andhra Pradesh, General Administration on 30 December 2010

HON’BLE SRI JUSTICE A. GOPAL REDDYANDHON’BLE SRI JUSTICE C.V.RAMULU

WRIT APPEAL Nos.86 & 411 of 2009

Dated: 30-12-2010

WRIT APPEAL No.86 of 2009

Between:

Smt. K.HemalathaANDGovt. of A.P.,General Administration Department (Accommodation),Secretariat Building, Hyderabad,Rep. by its Principal Secretary & Another.

…Appellant

Respondents.

WRIT APPEAL No.411 of 2009

Between:Govt. of A.P.,General Administration Department (Accommodation),Secretariat Building, Hyderabad,Rep. by its Principal SecretaryANDSmt.Y.Savithri & another …Appellant Respondents.

This Court made the following:

HON’BLE SRI JUSTICE A. GOPAL REDDYANDHON’BLE SRI JUSTICE C.V.RAMULU

WRIT APPEAL Nos.86 & 411 of 2009

COMMON JUDGMENT:(Per Hon’ble Sri Justice A.Gopal Reddy)

These two writ appeals under clause 15 of Letters Patent aredirected against the very same order of the learned single Judgeallowing W.P.No.20757 of 2008, dated 30.12.2008.

The writ petitioner, who was working as Assistant SectionOfficer in General Administration Department claims to be entitled forallotment of “A” type quarter but was allotted “B” type quarter by theGovernment in Memo, dated 28.1.2004 bearing No.B-101,Government Quarters, Patigadda Colony, Begumpet, Secunderabadand having taken possession thereof, she is presently residingtherein. While so, she made a representation to the Government forallotment of “A” type quarter and the Government considering herrepresentation issued order in G.O.Ms.No.946, General Administration(Accom.) Department, dated 20.12.2007 allotting her “A” type quarterbearing No.A-17, Government Quarters, Patigadda Colony, Begumpet,Scunderabad, on exchange basis subject to the terms mentionedtherein. One of the conditions mentioned in the allotment order is thatif she fails to take possession of the quarter within fifteen days from thedate of allotment order, she is liable to be debarred for a period of twoyears for purpose of allotment of Government quarter and she should intimate the date of occupation of the quarter allotted to her. Shecould not occupy the quarter as the incumbent namelyT.Satyanarayana, who is in occupation of the said quarter, did notvacate the same, even though he retired from service on 31.7.2008. While so, writ appellant in W.A.No.86 of 2009-second respondent inthe writ petition, who was in occupation of “C” type quarter made anapplication for allotment of “A” type quarter, but the Government videorders in Memo, dated 18.7.2008 informed her that she is not eligiblefor allotment of “A” type quarter. Thereafter, it appears, by memo,dated 6.8.2008 she was informed that quarter No.A-18 was alreadyallotted to some other office, and therefore, she may choose any othervacant quarter. Later, the second respondent, who was in occupationof “C” type quarter made an application for exchange of quarter A-18and the same has been rejected by the Government vide memo, dated18.7.2008. Aggrieved by the same, second respondent approachedthe then Hon’ble Chief Minister by way of a representation. TheGovernment in exercise of the powers under Rule 20 of the Allotmentof Government Quarters Rules, 1973 (for short ‘the Rules’) allottedquarter No.A-17 to the second respondent in exchange of her quarterNo.C-30. While allotting “A” type quarter to second respondent, theGovernment cancelled the allotment made to the writ petitioner earlierin G.O.Ms.No.946, dated 20.12.2007 through the impugnedG.O.Ms.No.586, dated 12.9.2008. Questioning the same, the abovewrit petition has been filed contending that when the first respondent inthe writ petition has categorically observed that the second respondentis not entitled to “A” type quarter and though she was asked to chooseany other quarter among A-2,,A-3,A-12,A-15 and A-16, again allottingquarter No.A-17, which was earlier allotted to the writ petitioner isillegal and in sheer violation of the principles of natural justice. Further

Conclusion

the cancellation of allotment of quarter No.A-17 made in favour of thewrit petitioner and allotting the same to the second respondent iswithout any notice to the writ petitioner and that the second respondentis junior to the writ petitioner and drawing less pay than the petitioner,and therefore, the writ petitioner is entitled to priority in allotment ofquarter. Said Satyanarayana, who was in occupation of quarter No.A-17 had not vacated the same, and therefore, the petitioner could notoccupy the said quarter within the time prescribed in G.O.Ms.No.946but after allotment of the said quarter to second respondent through theimpugned G.O., he proposed to shift his quarter to the quarteroccupied by the second respondent on exchange basis, and therefore,there is collusion in between T.Satyanarayana- occupant of A-17quarter and the second respondent and the Government facilitatedthem to defy the order in G.O.Ms.No.946 and prevented the petitionerfrom occupying the said quarter.

The Principal Secretary to Government, General Administration(Accommodation) Department filed a counter affidavit admitting thatthe representation of the writ petitioner was considered favourably andallotment orders were issued in G.O.Ms.No.946, dated 20.12.2007allotting quarter No.A-17 on vacation of the same by the incumbent. The application of the petitioner is governed by Rule 13 of theAllotment of Government Quarters Rules, 1973. The petitioner isworking as Assistant Section Officer and as per her eligibility, she isentitled for B-type quarter but not A-type quarter. The petitioner is nota Junior Officer (Assistant Secretary cadre) to be eligible to be allottedA-type quarter and that the petitioner is only a 3[rd] category officerunder rule 3(3) of the said Rules. The application of the secondrespondent for exchange of Quarter No.A-18 has been rejected by the Government through Memo No.24808/Accom.B/08-1, dated18.7.2008. Aggrieved by the same, she approached the then Hon’bleChief Minister and submitted a representation. Exercising the powerunder Rule 20 of the Rules, quarter No.A-17 was allotted to the secondrespondent in exchange of her quarter No.C-30. While allotting A-type quarter to second respondent, the Government cancelledG.O.Ms.No.946, dated 20.12.2007 through G.O.Ms.No.586, dated12.9.2008. It is also admitted that the Estate Officer submitted a reportstating that T.Satyanarayana, Assistant Secretary (Retd.) has vacatedthe quarter on 24.9.2008 and the physical possession of the saidquarter had been handed over to the second respondent on26.9.2008. It is stated that the case of the petitioner will be consideredfor allotment of A-type quarter in due course and as on today, four “A”type quarters are vacant and the petitioner can opt any one of the saidquarters by submitting a written requisition and the same will beexamined by the Government.

Second respondent in the writ petition has also filed a counteraffidavit stating that the Government by relaxing the Rules in exerciseof powers under Rule 20 of the Rules allotted “B” type quarter and nowshe is residing at B-101 at Patigadda, Government Quarters,Begumpet, Secunderabad. Later she was allotted “A” type quarterbearing quarter No.A-17. The writ petitioner being an employee of theSecretariat and holding a civil post cannot file the writ petition directlybefore this Court and only after exhausting remedy before the A.P.Administrative Tribunal, she can approach this Court and therefore, thewrit petition as such cannot be entertained.

The learned single judge after calling for the note file in allottingthe quarter to the second respondent, observed that the note, which

emanated from the desk of the Principal Secretary to Chief Minister, infact, states that the Hon’ble Chief Minister has agreed for allotment ofquarter No.A-18, Patigadda Colony to second respondent in relaxationof the Rules and necessary orders may please be issued. The saidnote only states that the Hon’ble Chief Minister had agreed forallotment of quarter No.A-18 to second respondent, but it nowherestates that second respondent should be allotted quarter No.A-17,much less by canceling the earlier orders issued by the Government inG.O.Ms.No.946, dated 20.12.2007, allotting the said quarter to the writpetitioner. It was held that the allotment of quarters on the basis ofsize of the family of the employee can never be the criteria forallotment, but it should be based on the post one holds in theadministrative hierarchy and the salary he draws and therefore, theground on which the second respondent sought allotment of “A” typequarter stating that she is having large size family, which is not evenreflected in the impugned G.O. cannot be countenanced and theimpugned G.O. issued by the Government canceling the earlierG.O.Ms.No.946, dated 20.12.2007 allotting quarter No.A-17 to the writpetitioner and allotting the same again to the second respondent iswithout any reasons and basis. In the absence of any direction tocancel the earlier order issued by the Government in the note file,canceling the allotment of quarter made in favour of the writ petitioneris not only arbitrary but also illegal and accordingly, the learned singlejudge allowed the writ petition quashing the impugned G.O. Questioning the same, second respondent filed W.A.No.86 of 2009and whereas, the Government filed W.A.No.411 of 2009.

A preliminary objection has been raised by Smt. B. NeerajaSudhakar Reddy, learned counsel appearing for the appellant in W.A.No.86 of 2009 that the allotment of quarter is a service conditionand therefore, the writ petitioner has to approach the tribunal first andonly after exhausting such remedy, she can file the writ petition andtherefore, the writ petition directly filed before this Court shall not beentertained and the same is liable to be dismissed. To substantiatethat the allotment of quarter is a service condition, reliance is placedon the decision of the Supreme Court in Karamchari Union, AGRA v. Union of India and Others [(2000) 3 SCC 335].

Though the learned Government Pleader filed appeal inW.A.No.411 of 2009 while reiterating that the allotment of quarter isalso one of the service conditions and this Court has no jurisdiction toentertain the writ petition, failed to substantiate the impugnedGovernment order except stating that the Government though earlierrejected the request of the second respondent stating that she has noeligibility for allotment of “A” type quarter, the then Hon’ble ChiefMinister in relaxation of the Rules allotted quarter to her and therefore,unless the power of relaxation is challenged, the writ petitioner cannotsucceed in the writ petition.

Both the counsel appearing for the appellants failed to point outany rule under which the writ petitioner or the second respondent areentitled to rent free accommodation or a government quarter in lieu ofHouse Rent Allowance. It only provides payment of House Rentallowance, which is different from place to place, which will becalculated on the basis of the basic pay drawn by the employee. Allotment of Government Quarters Rules, 1973 issued by theGovernment of A.P., which governs the allotment of governmentquarter only provides for allotment of quarters without discriminationand arbitrariness in allotting such quarters and the said rules are not framed as one of the service conditions of the employees and the Ruleitself says that the Rules apply to all the Government Quarters atHyderabad and Secunderabad under the control of GeneralAdministration (Accommodation) Department. Rule 4 of the Rules forAllotment of Government Quarters deals with eligibility of theemployees for allotment of the quarters. As per Rule 4(1) all theemployees of the Government of A.P. who are holding posts in officesin Greater Hyderabad are eligible for allotment of the Governmentquarters and as per Rule 4(2) an employee in need of a Governmentquarter may apply to the appropriate authority in the prescribed form. An employee who owns a house within the limits of the MunicipalCorporation of Hyderabad or within the periphery of 8 K.Ms. from thoselimits, which is his place of duty, shall not be eligible for allotment of aGovernment quarter irrespective of such house or flat is (a) inherited;or (b) acquired; or (c) constructed by him with or without the housebuilding advance obtained from Government or any other agency; or(d) obtained under a hire purchase scheme; or on rental basis from theA.P. Housing Board, or from any other agency.

In the judgment in Karamchari Union, AGRA (referred tosupra) on which reliance is placed by the learned counsel for theappellant in W.A.No.86 of 2009, it was held that the House RentAllowance is part of income which constitute a taxable income for thepurpose of computation of the income tax, but cannot be treated it as aservice condition. There is no compulsion for the Governmentemployees to occupy the Government quarters and there is no rule thatas long as the vacant quarters are available they are not entitled tohouse rent allowance. In view of the same, unless the Government isobligated itself to provide a rent free accommodation under the service rules, it cannot be said that it is one of the service conditions to claimallotment of quarter as a matter of right before the Tribunal and to oustthe jurisdiction of this Court from entertaining such writ petitions. Therefore, the contention that this Court has no jurisdiction to entertainthe writ petition unless the petitioner approached the Tribunal in thefirst instance does not merit consideration and the same is accordinglyrejected.

Admittedly, the writ petitioner was allotted quarter No.A-17 inrelaxation of the Rules. It is not the case of the Government that thesecond respondent is eligible for allotment of “A” type quarter and thewrit petitioner, who is ineligible, was allotted the quarter ignoring theclaim of the second respondent. Further the second respondent isjunior to the writ petitioner and she is entitled to only “C” type quarterbut not entitled to “A” type quarter. Merely because the secondrespondent had some influence at Chief Minister Pashi, she is notentitled to claim priority right over the writ petitioner. Once theGovernment relaxed the Rules in favour of the writ petitioner as well asthe second respondent, the second respondent now cannot plead thatthe writ petitioner is not entitled for allotment of “A” type quarter. If thesaid contention of the second respondent is to be accepted, equally,the second respondent is also not entitled for allotment of “A” typequarter. Once the request of the second respondent for allotment ofquarter No.A-18 has been rejected by Government through memo,dated 18.7.2008 informing her that she is not entitled for allotment of“A” type quarter and asked her to choose any of the vacant quartersnaming the quarter bearing Nos.A-2,A-3,A-12,A-15 and A-16, it isincumbent upon the second respondent to choose either of thequarters specified in the said memo. When the second respondent made a representation to the then Hon’ble Chief Minister, byexercising the discretionary power under Rule 20, the then Hon’bleChief Minister relaxed the Rules for allotment of “A” type quarter in herfavour. The said relaxation is only for eligibility of second respondentfor allotment of “A” type quarter, but not with regard to the quarterbearing No.A-17, which was already allotted to the writ petitioner. Thenote file as extracted by the learned single Judge also does notindicate allotment of A-17 quarter in favour of second respondent bycanceling the earlier order issued in G.O.Ms.No.946, dated20.12.2007. If that be the note file, the persons, who are workingunder the General Administration, in their over anxiety either to pleasethe then Hon’ble Chief Minister or to please the second respondent,appears to have issued the impugned G.O.Ms.No.586 by canceling theearlier G.O.Ms.No.946 allotting A-17 quarter to the writ petitioner,without recording any reasons. It is well settled that when theimpugned order does not indicate any reason for cancellation ofallotment of the quarter, the same cannot be supplemented in the formof counter affidavit. Once an allotment order is made in favour of thewrit petitioner, a right is accrued to her in the quarter and even if theauthorities want to cancel the said quarter, she is entitled to a noticeexplaining the reasons for such cancellation and she should beprovided an opportunity to submit her explanation.

Hence, the impugned order is not only violative of principles ofnatural justice but also arbitrary and illegal as the impugned G.O. wasissued only to confer a boon to the second respondent, which hasbeen elaborately explained by the learned single judge in his order. Inthat view of the matter, this Court is not persuaded to take a differentview than the one taken by the learned single Judge. The Principal

Secretary to General Administration (Accommodation) Department notonly blindly issued the impugned G.o.Ms.No.586 contrary to the notefile but also tried to justify his action and forced the writ petitioner toknock the doors of this Court. Therefore, W.A.No.411 of 2009 filed bythe Government is dismissed with costs quantified at Rs.10,000/-payable by Mr.Prabhaker Thomas, Principal Secretary to GeneralAdministration (Accommodation) Department, to the writ petitioner. The Government of A.P. is directed to recover the said costs from thesalary of said Prabhaker Thomas and pay the same to the writpetitioner within a period of four weeks from the date of receipt of acopy of this judgment and report compliance of the same. W.A.No.86of 2009 is also dismissed with costs of Rs.10,000/- payable by theappellant therein to the A.P. State Legal Services Authority,Hyderabad within four weeks from the date of receipt of a copy of thisjudgment.

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A.GOPAL REDDY, J.

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C.V.RAMULU, J.

DECEMBER 30, 2010Tsr.