IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 146 of 2001 Date of Decision: 4.3.2008 State of H.P. & anr. ….Petitioners. Versus. Smt. Shashi Vikrant & anr. ....Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for Reporting? No. For the Appellant(s): Mr.R.M.Bisht, Deputy Advocate General. For the Respondent(s): Mr. Shrawan Dogra, Advocate. Deepak Gupta, J. (Oral). This writ petition under Article 226 of the Constitution of India, is directed against the order of the learned Administrative Tribunal, passed in OA No. 2149 of 1997, decided on 31.8.2000 whereby the learned Tribunal has held the Rule 8(2) of the Himachal Pradesh Allotment of Government Residences (General Pool) Rules, 1994 (hereinafter referred to as the Allotment Rules) is invalid and discriminatory. Brief facts of the case are that respondent No.2 B.D.Pathak was allotted Government accommodation. Respondent No.1 is his daughter. She was working as Litho-Artist, in H.P. Government Printing Press, Shimla. The husband of respondent No.1 was - 2 - posted at Shimla first as Assistant Engineer and later as Executive Engineer. Respondent No.2 retired as the Registrar from the H.P.PWD, on 31.3.1997. The respondent No.1 was claiming house rent allowance upto January 1997 and in February, 1997, she shifted to the Government Accommodation allotted to her father and submitted an application on 15.2.997 to her employer requesting that the house rent may not be paid to her. After the respondent No.2, retired from service on 31.3.1997, the respondent No.1 moved an application claiming allotment of Government accommodation in occupation of her retired father respondent No.2. This application was rejected. Since the father of respondent No.1 was entitled to retain the government accommodation till 31.3.1997, he was permitted to do so and in fact extension was given upto 31.10.1997. He was, however, held liable to pay double the government rent i.e. Rs. 176/- per month. Rule 8 of the Allotment Rules provides for ad hoc allotment on out of turn basis. Rule 8(2) with which we are concerned, reads as follows:- “8. Ad hoc allotment on out of turn basis - Notwithstanding the provisions of rule-7, ad hoc allotment on out of turn basis may be made by the House Allotment Committee to an officer/official on the following grounds:- (1) xxx xxx xxx xx xxx Xxx xx xx xx xxx (2) In the event of death or retirement of a Government, to the wife/husband or son or unmarried daughter, provided that the retired or - 3 - the deceased Government servant was in occupation of Government accommodation at the time of retirement or death, such allotment shall not be made in a category higher than a category to which the ward of the deceased or retired Government servant is entitled.” The validity of this rule was challenged on the ground that the said rule discriminates between the married and unmarried daughter. The learned Tribunal held that the rule is invalid and there can be no discrimination against the married daughter and it was the choice of the retiree whether he wants to stay with his son or daughter, married or unmarried. A similar question arose before the apex Court in Savita Samvedi (Ms) and another v. Union of India and others (1996) 2 SCC 380, The instructions of the Railway Ministry, which the Supreme Court was dealing with, read as under:- “Reference Railway Ministry’s letters No. E)G)82 R 1-23 dated 27.1.2.1982 and E(G)85 R 1-9 dated 15.1.1990 as clarified vide their letters No. E(G)90 R 1-11 dated 15..3.1991 and 1.7.1991, conveying instructions that when a railway servant who is an allottee of railway accommodation retires from service, his/her son, unmarried daughter, wife, husband or father as the case may be, may be allotted railway accommodation on out of turn basis subject to fulfillment of prescribed condition. The Ministry of Railways have reviewed the matter and in supersession of the instructions vide their letter NO.E(G)82 R dated 27.12.1982, have decided to extend the scope of this concession to the married daughter of a retiring official, in case he does not have any son or in case where the married daughter is the only person who is prepared to maintain the parent(s) and the sons are not in a position to do so ( e.g. minor sons). This will be subject to the condition already - 4 - prescribed which are applicable to the other eligible wards seeking such concessions. The decision communicated above will also be equally applicable in the case of death/medical unfitness.” The first part of the Railway Ministry’s letter is couched in language similar to Rule 8(2) of the Allotment rules. However, the Ministry of Railways reviewed the instructions and decided to extend the benefit even in case of married daughter where the married daughter is only the person who is prepared to maintain her parents. The apex Court held as follows: “7. The retiring official’s expectations in old age for care and attention and its measure from one of his children cannot be faulted or his hopes dampened, by limiting his choice. That would be unfair and unreasonable. If he has only one married daughter, who is a railway employee, and none of his other children are, then his choice is and has to be limited to that railway employee married daughter. He should be in an unfettered position to nominate that daughter for regularization of railway accommodation. It is only in the case of more than one children in railway service that he may have to exercise a choice and we see no reason why the choice be not left with the retiring official’s judgment on the point and be not respected by the Railway authorities irrespective of the gender of the child. There is no occasion for the Railways to be regulating or bludgeoning the choice in favour of the son when existing and able to main his parents. The Railway Ministry’s Circular in that regard appears thus to us to be wholly unfair, gender- biased and unreasonable, liable to be struck down under Article 14 of the Constitution. The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), so as to claim the benefit of the earlier part of the Circular, referred to in its first paragraph, above-quoted.” In view of the clear cut law laid down by the apex Court, we are in agreement with the learned Tribunal that Rule 8(2) of the Allotment rules, suffers from gender bias and there can be no - 5 - distinction between a married and an unmarried daughter. It is for the retiree to choose with whom he wants to stay. Even if a retiree has sons, he may not for personal reasons, stay with his sons. The old age concept of married daughters being no longer part of the family may not be held to be valid in the fast changing world. However, we are of the considered view that the learned Tribunal could not have issued direction which it has further issued whereby it has directed that Set No.3, Spring Field, Chhota Shimla be allotted to respondent No.1 from the date when her father was retired on 31.3.1997 on normal rent and the excess amount of rent recovered from her father be refunded to him. A perusal of Rule 8, clearly shows that it is only an able and enabling provision to make out of turn allotment. Out of turn allotment cannot be claimed as a matter or right. There are various employees in line and out of turn allotment must be considered not only in the context of the persons applying for out of turn allotment but also keeping in view the interest of the other government employees who are seeking to be allotted Government accommodation. At best, the learned Tribunal could have issued direction to the State Government to consider the case of respondent No.1 dehors the provisions of Rule 8(2) and - 6 - holding that the father was entitled to stay with his married daughter. No party has a right to continue to reside in Government accommodation until the same is allotted to it. Merely because the respondents continued to occupy the flat will not make their possession legal. Therefore, the direction of the learned Tribunal directing the petitioners to refund the excess amount to respondent No.2 is not in accordance with law. We have been informed that in fact the premises were vacated as far back as 2000. The rent involved is very meagre and just about Rs.6000/-. Therefore, we feel that it would not be in the interest of justice to send the matter back for reconsideration. The direction of the learned Tribunal directing the petitioners to allot the flat in question to respondent No.1 and also to refund the enhanced rent, is set aside. The writ petition is disposed of in the aforesaid terms. No costs. ( Deepak Gupta ), J. March 4, 2008 ( Rajiv Sharma ), J. s.