UNION OF INDIA & ANR versus OMKAR NATH DHAR (D) THROUGH L.RS. on 7 October 2021

1. This order shall be read with in continuation of order dated5.8.2021 and shall dispose of the three applications filed by the occupantsof the Government accommodation in Delhi and in National CapitalRegion on the strength of an order passed by the Delhi High Court in ajudgment reported as Union of India v. Vijay Mam[1], including anapplication filed by the legal heir of the deceased respondent OmkarNath Dhar for recall of judgment of this Court passed on 5.8.2021.

2. In M.A. No. 1468 of 2021, recall is sought on the basis that therespondent had died on 16.3.2020 and this Court had passed an orderwithout seeking substitution of the legal representatives of the deceasedrespondent.

3. All these applications are filed by the applicants who are inpossession of government accommodation in Delhi and/or National CapitalRegion in terms of policy framed by the Central Government on 28.3.2017as modified on 19.5.2017.

4. In Vijay Mam, there was a direction that the CentralGovernment was to frame a rehabilitation scheme specifically for suchretired employees like the respondents herein, specifying the terms andconditions on which such persons would be entitled to rehabilitate/alternateresidence, which may include the term that these respondents or familymembers do not have any residence in any part of the country. The 1 2012 SCC On Line Del 3218

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[2021] 6 S.C.R.

AOffice Memorandum is the policy circulated on 28.3.2017 in pursuanceof the directions of the High Court of Delhi. The relevant extract fromthe Office Memorandum reads thus:

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OFFICE MEMORANDUM

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Subject: Scheme for providing alternate accommodation etc. toretired Central Govt. employees belonging to the State of Jammu& Kashmir holding General Pool residential accommodation inDelhi in terms of the direction of Hon’ble High Court of Delhi.

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4. In view of direction of the Hon’ble High Court of Delhi, a schemehas now been formulated by Ministry of Urban Development, inconsultation with Ministry of Home Affairs, for providing alternateresidence to retired Central Govt. employees belonging to StateDof Jammu & Kashmir who are possessing General Pool ResidentialAccommodation (GPRA) in Delhi and who meet the specifiedterms and conditions to qualify as “Kashmiri migrant”. The Schemeis enclosed at Annexure.

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Annexure

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Scheme for· providing alternate accommodation etc. to retiredcentral Govt. employees belonging to the State of J&K holdingGeneral Pool residential accommodation in Delhi in terms of thedirection of Hon’ble High Court of Delhi F1. Terms and conditions for qualifying a ‘Kashmiri migrant’ underthis scheme

(i) The applicant should be a retired Central Government employeeor his/her .spouse (in case the employee is dead), and the applicantshould be in possession of a General Pool ResidentialGAccommodation (GPRA) in Delhi allotted by the Directorate ofEstates, Ministry of Urban Development on the date of filing theapplication.

(ii) Applicant should be a permanent resident of State of Jammuand Kashmir and should be an erstwhile domicile of KashmirHDivision excluding Ladakh and Kargil districts.

(iii) Applicant was an employee . 9f the Central Government andwas posted in Srinagar, J&K at the relevant time, and he wastransferred by the Central Government from Srinagar to Delhi onsecurity ground after 1st November, 1989.

(iv) He/She’or his/her family have no other residence in any partof the country.

(v) Though he/she has retired, he/she is not in a position to goback to his/her native place because condition are still notfavourable for his/her safe return back to the valley.

2. Scheme

i). The retired Kashmiri migrants (who were litigants in the casesdecided by Hon’ble Delhi High Court) holding residentialaccommodation from General Pool shall be provided retention inthe quarters in their possession at present.

ii) Such retired Kashmiri migrants, who meet the specified termsand conditions to qualify as a ‘Kashmiri migrant’ would beaccommodated in Delhi for first five years starting from the dateof their retirement and thereafter be shifted to NCR. The schemewould apply to those retired Central. Govt. employees belongingto State of J&K who have been transferred by the Central Govtfrom Srinagar to Delhi on security grounds after 1st November,1989.

iii) The quarters may be held by the retired government employeestill his/her demise or demise of his/her spouse whichever eventtakes place later, subject to extension of this scheme and thecondition that the retired government employee/spouse doesn’tprocure a house in any part of India subsequent to their availingof this scheme. Extension of this scheme will be granted at parwith the extension of the scheme of retention of GPRA at the lastplace of posting to civilian Central Govt. Employees posted to theState of J&K.

iv) The incumbent or his/her spouse, as the case, may be, willhave to submit a life certificate once a year (in November) to theDirectorate of Estates in the proforma prescribed for Pensionersfor the purpose of availing benefits of the Rehabilitation Schemefor Kashmiri migrants.

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A3. Documentary Proof to be submitted for examining the requeston case to case basis.

When a claim is received for consideration for providing alternativeresidence under the direction of the Hon’ble High Court, theclaimant must provide adequate· documentary proof in support ofBhis claim that his/her case falls within the parameters of thoseretired Kashmiri migrants who were granted relief by the Hon’bleCourt as set out in .para 30 of the judgment. Following documentsmay be collected from them;-

a) Proof of posting in Srinagar, Jammu & Kashmir in CentralCGovt. office· during relevant period (documentary proof issuedby the employer)

b) Proof of transfer from Srinagar to Delhi during the relevantperiod, i.e. after 1st November,1989 (copy of transfer order/letter)

c) Proof that he/she or his/her family have no other residence. inDany part of the country. (copy of service book to ascertain if hehas taken HBA from the Government)

d) A life certificate from the incumbent/spouse, as the case maybe, once per year (in November) in the proforma prescribed forthe Pensioners for the purpose of availing benefits of RehabilitationEScheme for Kashmiri migrants.

4. The claim with the documentary proofs received from suchretired Kashmiri migrants may be processed in the AllotmentSection on case-to-case basis and their entitlement to analternative. residence be decided in the light of the specified termsFand conditions and the documentary proof produced by them.Alternative residence should be provided only after it is establishedfrom documentary proof that they fulfill the specified terms andconditions: Those who d9 not meet these conditions may be askedto vacate the quarters as per the provisions of Public Premises(Eviction of Unauthorised Occupants) Act, 1971'. Damage chargesGmay also be made applicable on them for retaining the quartersbeyond the permissible period.”

5. Clause 2(i) of the Scheme was restricted to grant of benefits toretired Kashmiri Migrants who were litigants in the cases decided bythe High Court of Delhi holding residential accommodation from theHGeneral Pool. However, such conditions were modified on 19.5.2017 to clarify that the Office Memorandum dated 28.3.2017 is applicable equallyto all retired Central Government employees belonging to the State ofJammu & Kashmir who are holding General Pool residentialaccommodation in Delhi, irrespective of whether they were litigantsbefore the Delhi High Court.

6. Mr. Bimal Roy Jad, learned senior counsel appeared for theapplicants in M.A. Nos. 1556 of 2021 and 1573 of 2021 and vehementlyargued that this Court on 5.8.2021 held that the directions issued in J.L.Koul were under Article 142 of the Constitution of India but in fact, thedirections were not issued under Article 142 of the Constitution of Indiabut while deciding the rights of the Kashmiri Migrants to residentialaccommodation. It was further argued that the Kashmiri Migrants forma different class as victims of terrorism, therefore, the same were dealtwith while keeping in view peculiar hardships faced by them. Since,neither the transit accommodation is available for them nor they can goto their houses which stand either occupied by the local population ordestroyed, therefore, the Kashmiri Migrants have been treated as a classapart, particularly the applicants who were working in the criticalintelligence offices. Thus, in light of such background, the Scheme wasframed.

7. It was argued that 31 Kashmiri Migrants were given protectionin J.L. Koul, therefore, similar protection was accorded by the HighCourt of Delhi to the 54 Kashmiri Migrants. As per written submissionsfiled by the appellants, 80 Kashmiri Migrants are in possession ofGovernment accommodation in Delhi and 3 in Faridabad.

8. To a question put to Mr. Jad, it was admitted by him that someof the migrants have retired many years ago but some might have retiredin 2016, 2017 and 2018 as well. Learned counsel argued that since theScheme provides a humanitarian approach to the problems faced by theKashmiri Migrants, therefore, the order passed by this Court needs tobe recalled. It was argued that the judgments referred to by this Courtsuch as Lok Prahari, S.D. Bandi and Shiv Sagar Tiwari arise indifferent circumstances and are not applicable to the displaced KashmiriMigrants.

9. Mr. Jad submitted that 31 retirees are still in occupation ofGovernment accommodation, therefore, the same benefit should begranted to the other occupants in Delhi and/or National Capital Region.It was also submitted that the judgments referred to by this Court in Lok A

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APrahari were in respect of prominent public figures such as ChiefMinisters, therefore, such directions in the aforesaid referred cases wouldnot be applicable to the present applicants who are victims of terrorism.

10. On the other hand, Ms. Madhavi Divan, learned AdditionalSolicitor General of India pointed out that the Government has givenBvarious benefits to Kashmiri Migrants including grant of financialassistance, financial package for repairs and renovation of the houses,jobs, ration etc. It was also argued that with the abrogation of Article370 from the Constitution of India, the Kashmiri Migrants have startedmoving back to the Kashmir Valley. Reference was made to the statementof Hon’ble Minister of State in the Ministry of Home Affairs on the floorCof the House on 17[th] March 2021 that nearly 3800 persons have returnedback to the Kashmir Valley in the last few years to take up the PMpackage jobs. 520 migrants have returned to Kashmir for taking up thejobs that have been provided to them under the Rehabilitation Packagepost abrogation of Article 370. Another nearly 2000 migrants are alsoDlikely to return under the same policy in the year 2021 on successfulcompletion of the selection process. The Parliament was also informedthat Government has devised policies for Return and Rehabilitation ofKashmiri Migrants under the Prime Minister’s Packages in the year2008 and 2015. The various components of the policies included assistanceat the rate of Rs. 7.5 lacs for repairing fully or partially damaged house;ERs. 2 lacs for dilapidated/ unused house and Rs. 7.5 lacs for purchase/construction of a house in group housing societies for those who soldtheir properties during the period after 1989 and before the enactmentof JK Migrant Immovable Property Preservation, Protection andRestraint of Distress Sale 1997. Cash relief is also being provided whichFhas been raised to Rs. 13,000/- per family at the rate of Rs. 3250/- perperson. 6,000 posts were announced under PM Packages and nearly3,800 Kashmiri Migrants have been rehabilitated directly by providinggovernment employment. In respect of transit accommodation, it wasstated as under:

“In order to provide accommodation to the 6,000 KashmiriGMigrants who are getting employed in the Government of Jammuand Kashmir in the valley, 6,000 Transit Accommodation units arebeing constructed for Kashmiri Migrants Employees in variousdistricts of Kashmir Valley at an estimated cost of Rs.920 Cr. Sofar, 1,025 dwelling units have already been constructed whichHinclude 721 dwelling units in the district of Budgam, Kulgam, Kupwara, Anantnag and Pulwama. Another 1,488 units are underconstruction and land has been identified for about 2444 units.”

11. We do not find that any modification is required to the orderdated 5.8.2021. In J.L. Koul, an affidavit of Chief Secretary of theState was filed disclosing that out of 54 appellant/Migrants, 23 had alreadyvacated Government accommodation whereas 31 Migrants were stilloccupying the Government accommodation. The appellants were allottedresidential accommodation at Jammu in the year 1989-1990 beingGovernment servants. The writ petitions were filed before the High Courtin the year 1995 which were decided by the learned Single Bench.Aggrieved against the directions issued by the learned Single Bench ofthe High Court, the occupants filed intra-court appeal before the HighCourt which was dismissed. Still further, appeal was filed before thisCourt.

12. This Court noticed that during the period of 12 years when thematter remained pending, directions were issued to prepare aRehabilitation Scheme which was ultimately prepared and placed onrecord by the Chief Secretary of the State. Accepting the Scheme, itwas held that no further action/direction was required. However, theappeal was disposed of “with a pious hope that the State shall takeall endeavours to rehabilitate the persons who have been victim ofterrorism and till the State is able to rehabilitate and provide theappropriate accommodation to 31 appellant retirees/oustees, theyshall continue to possess the accommodations which are in theirrespective possession on this date.”

13. We do not find any merit in the argument that directions inJ.L. Koul were not under Article 142 of the Constitution of India. ThisCourt accepted the Rehabilitation Scheme produced on affidavit by theChief Secretary of the State and thereafter expressed a pious hope.This Court did not decide any question of law or fact but merely expresseda compassionate view to alleviate the difficulties being faced by KashmiriMigrants. The Rehabilitation Package approved by this Court itselfcontemplated that transit accommodations were being constructed atthree sites but if such transit accommodation was not available, RupeesOne Lakh per family towards rental and incidental expenses would begiven to those who may not be accommodated in transit accommodation.Thus, even if they have not been given alternate accommodation, theScheme approved by this Court contemplates cash compensation towards AB

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Arental and incidental expenses. The compassion could not be extendedin perpetuity and has to end some day or the other. Therefore, seekingparity with 31 retirees who were granted benefit in J.L. Koul is nottenable. The applicants are occupying the government accommodationat the cost of other Government servants who are waiting in queue forallotment of a government accommodation to discharge their officialBduties. The compassion shown to Kashmiri Migrants has to be balancedwith the expectations of the serving officers to discharge their dutieseffectively. The Government accommodation is meant for servingofficers and cannot be taken as a recourse to stay in Governmentaccommodation for the life time of the Government servants or his/herCspouse.

14. The Office Memorandum issued on 28.3.2017 was in termsof the directions of the High Court of Delhi. Such order of High Courthas not been approved by this Court vide order dated 5.8.2021. Therefore,the entire basis of issuance of Office Memorandum falls flat as the veryDfoundation of such Scheme stands knocked down.

15. We find that the Office Memorandum allowing governmentaccommodation to the retired Government employees who are KashmiriMigrants cannot meet the touchstone of Article 14 of the Constitution ofIndia. The Government houses/flats are meant for serving GovernmentEemployees. Post retirement, the government employees includingKashmiri Migrants are granted pensionary benefits including monthlypension. The classification made in favour of Government employeeswho were Kashmiri Migrants stands on the same footing as that ofother Government employees or public figures. There cannot be anyjustification on the basis of social or economic criteria to allow theFKashmiri Migrants to stay in Government accommodation for indefinitelong period.

16. To say that they would return to the Valley when the situationwill improve is an open-ended statement capable of being interpreted indifferent ways. The satisfaction of improvement of situation would beGwidely different by the erstwhile Government employees and the State.But in no case it can be countenanced that the former Governmentemployee, may be a Kashmiri Migrant, is entitled to stay in a governmentaccommodation for an indefinite period. Thus, we are unable to upholdthe Office Memorandum and strike it down as being totally arbitraryHand discriminatory.

17. In Para 2(ii) of the Scheme, Kashmiri Pandits were to beaccommodated in Delhi for first five years starting from the date of theirretirement and thereafter be shifted to National Capital Region. Thus,we find it reasonable if Kashmiri Migrants are allowed governmentaccommodation for a period of three years from the date of retirementso as to make alternative arrangements within such period. If an alternativeaccommodation is not available for them at their instance, they are atliberty to move to the transit accommodation or to avail cash amount inlieu of transit accommodation. Thus, a government employee who is aKashmiri Migrant would not be entitled to retain Governmentaccommodation for a period exceeding three years, may be in Delhi orin the National Capital Region or for that matter anywhere in the country.

18. The three-years period can also be considered as cooling offperiod for the officers who were in active intelligence work so that theycan resume normal life but the excuse of once working for intelligenceagency is not a valid ground to occupy the Government accommodationfor indefinite period.

19. In view thereof, we do not find any merit in the presentapplications. The same are dismissed. However, time granted to OmkarNath Dhar, since deceased, to vacate the premises is extended upto30.11.2021. The action taken report by the Union shall be filed on orbefore 15.12.2021. The liberty is given to the Union to file an applicationfor modification of the order in respect of the 31 retirees as well whoare covered by the judgment in J.L. Koul.

Devika Gujral

Applications dismissed.

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