1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.381 OF 2006 Dr.(Mrs) Priya Anand Hombali Age: 52 years, Occu: Service R/at.104, Akshaya Sagar Apartment Sant Mandeo Peth, Dombivali(E) District : Thane. ... Petitioner Vs. 1. State of Maharashtra through the Secretary to Govt. Public Health Department Mantralaya, Mumbai- 400 032. 2. Commissioner Employees' State Insurance Scheme, Maharashtra, 6th floor, Panchadeep Bhavan, N.M. Joshi Marg, Lower Parel Mumbai- 400 013. 3. Medical Superintendent Employees' State Insurance Scheme, Hospital, Ulhasnagar District: Thane. ...Respondents Mr.M.I.Pathan , Advocate for Petitioner Mrs. S.S. Bhende, A.G.P for Respondents 1 to 3 CORAM: SMT.RANJANA DESAI & 2 SMT.ROSHAN DALVI, JJ. Date of Reserving the Judgment: 29 th February, 2008 Date of Pronouncing the Judgment: 24 th March, 2008 JUDGMENT (Per Smt. Roshan Dalvi, J.) 1. Rule. Returnable forthwith as affidavit in reply on behalf of the Respondents has been filed. Heard Mr. Pathan learned Advocate for the Petitioner and Mrs. Bhide learned A.G.P for the Respondents. 2. The Petitioner was appointed as a Resident Anesthetist at ESIS Hospital, Worli, Mumbai under Appointment Order dated 23rd September 1980, Exhibit- E to the Petition. That was a temporary post of M.M.I.S. Class II requiring the Petitioner to officiate on the post until the post was filled on regular basis. The Petitioner served initially at Worli and then at Mulund and Ulhasnagar. She is now serving at the E.S.I.S Hospital, Worli, Mumbai. She lives in Thane as is evident from the title of the Petition. 3. The Petitioner does not reside in Government accommodation. The Petitioner claims to be paid House Rent Allowance (HRA) on the premise that she does not want and has rejected the government accommodation offered to her. 4. The Petitioner was initially offered government accommodation on 8 th October 1999 by the 1st allotment of accommodation made by the Respondents. The Petitioner had refused the said accommodation by her letter dated 11 th October 1999. Thereafter 3 the Petitioner was offered a choice of accommodation on 23rd October 2003. The Petitioner, by her letter dated 29th October 2003 refused the said accommodation and requested the Respondents not to allot government accommodation to her and to allow her to reside in her own accommodation. 5. By a later Government Resolution (GR) dated 1st November 2003, Exhibit- F to the Petition, the Respondents granted various specific accommodations to several medical officers and hospital staff including the Petitioner. Under the said G.R the Petitioner was allotted Room No.5 in Type IV accommodation. Two Doctors have also been allotted the adjacent rooms in type IV accommodation under the said G.R. 6. Under the said GR the allottees were directed to reside in their respective accommodations provided for emergency services. Disciplinary action was to be taken against them if they refused accommodation. They were informed that House Rent Allowance (HRA) and Travelling Allowance (TA) would not be paid to them since government quarters were allotted and reserved for them. Recovery of HRA and TA already paid was to be made. 7. Further, the allottees were directed to contact National Building and Construction Company, Ulhasnagar for maintenance and repairs to the allotted premises directly, for which the office was not to be held responsible. The allottees were directed to take possession of allotted premises. 4 8. It is this GR which the Petitioner has essentially challenged. She claims directions in this writ petition pursuant to this G.R. 9. It is her case that her appointment was to a temporary post for 120 days made in September 1980. Her appointment letter did not make any reference to or offer her any government accommodation. The stay in the government accommodation was, therefore, not a condition of her service. She was offered and had rejected government accommodation earlier. She never resided in any government accommodation for 23 years of her service from September 1980 till the impugned G.R was passed and she was informed of the same on 1st November 2003. 10. It is also her case that her appointment was not on primary call, as that of a surgeon's appointment in a Hospital. She claims that she is called only after the surgeon would decide to operate, which would leave her enough time to attend the call. She has never failed to attend to the patients whom she has to serve. In her entire service, no lapse on her part for failing to attend an emergency call, by which any patient suffered at the time of surgery, is shown by the Respondents. This fact has been tacitly admitted in para 7 of the affidavit in reply filed by Dr. Anil Mane, Medical Officer, E.S.I.S Hospita, Ulhasnagar, District: Thane. 11. It is further her case that the accommodation offered to her lacks the most basic amenities like water supply, besides it not being at all maintained as it had not been allotted for a number of years. She, therefore, contends that the accommodation is totally 5 unfit for human habitation which she is not bound to accept. 12. The G.R dated 1st November 2003 (Exhibit- F) to the Petition, itself shows that allottees should contact National Building & Construction Company, Ulhasnagar for maintenance and repairs for which the office would not be responsible. A copy of the G.R is stated to have been endorsed to the said Company also. The very tenor of the G.R exhibits the repairs and maintenance required to the premises allotted on the date of the allotment itself. It is implicit in each allotment that the premises allotted to government officers is in a state of good repair and is reasonably maintained. The Petitioner has contended how even water supply is not available in the premises. The Petitioner is a medical officer- Class II. She is not expected to reside in a premises without a water supply for at least some part of the day. She is also not expected to undergo repairs to the premises allotted, even before she can occupy the same. The government is in the position of a lessor/ licensor of the premises. The Petitioner is in the position of a lessee/licensee, albeit only during her service. She is also required to pay license fees for the premises, which may be deductible from her salary, as per the G.R dated 17 th Februar 2001, Exhibit- D to the Petition. 13. We may mention that the Respondents do understand and have accepted this legal position. Hence, in para 6(1) of the affidavit in reply, it is stated: “Respondent No.3 has taken up the matter with the maintenance agencies and other authorities in the 6 past and will be following up the matter with all concerned for proper maintenance of the quarters.” This, therefore, shows a completely erroneous legal position in the impugned G.R. Dated 1st November 2003 which is rightly challenged by the Petitioner. 14. The rights and liabilities of the lessor and lessee enunciated under Section 108 of the Transfer of Property Act would implicitly apply in this case to the Government and the Petitioner respectively as the Government allots government premises to its officers and servants upon payment of license fees. The most essential right of the Petitioner as the lessee (licensee) is to obtain the premises reasonably repaired and maintained under clause (f) of Section 108 of the Transfer of Property Act. Correspondingly, therefore, it is the implicit liability of the Government as the lessor to offer and keep the leased/licensed premises in a state of tenentable repair. It is impertinent for the Government to offer accommodation which requires imminent repairs and to direct the Government servants to undertake the exercise of having the premises repaired on the date of allotment itself and to throw up its hands from the responsibility that every lessor/licensor, expressly as well as implicitly, has under the law. 15. It is her further case that she was entitled to Type V accommodation, whilst she was allotted Type IV accommodation, which she is not bound to accept. It is an admitted position that her basic pay range is Rs.8000- 275- 13500. As per the G.R dated 17 th February 2001 Exhibit- D to the Petition, showing the table of 7 pay range against the admissible accommodation types, she falls in the 5 th range, for type V accommodation. This aspect has been admitted in para 5 of the affidavit in reply of Dr.Mane. 16. Consequently, the statement in para 5 of the affidavit in reply that Type IV accommodation is allotted to the Petitioner “which is available to this Hospital” cannot be accepted as an action in discharge of the State's obligation for enforcing the acceptance of such accommodation by government officers on the pain of refusal of HRA instead. 17. It is contended by Mrs. Bhide, A.G.P, that under Rule 838 of the Bombay Civil Services Rules, if a Government employee fails to take possession of the quarters allotted to him/her, he would be deemed to have taken possession and he is charged for the same, implying that HRA would then not be payable to him/her. It is, therefore, contended that the Petitioner having rejected the accommodation offered, she will not be paid HRA instead and her claim to that extent should be rejected. 18. Mrs. Bhide, drew our attention to the G.R dated 30 th May 1989, Exhibit- A to the Petition. Under that G.R government servants who have been offered or allotted government accommodation would not be entitled to HRA. The object and rationale of that rule is incorporated in the G.R itself. It is that whilst government accommodations remain vacant, HRA need not be paid. Under para 4 of the said G.R government servants who refuse or who vacate government accommodation would be entitled 8 to HRA if they obtain permission from their respective Departmental Heads that the government accommodation did not remain vacant. In this case, 3 Doctors are stated to have been allotted premises on 1st November 2003. Mrs. Bhide orally states that the others have occupied the accommodation offered and only the Petitioner has refused. That, however, does not show whether the Room No.5 in Type IV accommodation offered to the Petitioner has remained vacant since that date or whether it has later been allotted to any other government Officer. It is not denied that the Petitioner was offered government accommodation in the past also, which she had refused and she was paid HRA and TA which are sought to be recovered under the impugned GR dated 1st November 2003. 19. The proviso to Rule 4 of the G.R dated 30 th May 1989 shows that HRA is not allowable to government servants for whom it is necessary to reside in the assigned residence as a requirment of his duties. Though, it is feebly suggested that the Petitioner would belong to such class of government servants as would require to live in the accommodation near the workplace, she being an anesthetist, that is not reflected in her Appointment letter Exhibit- E to the Petition as a condition of her service. She, therefore, cannot be compelled to accept such a condition after 23 years of service. 20. It is seen that the Petitioner has never applied and in fact rejected government accommodation. She lived in her own accommodation and served as anesthetist in various ESIS Hospitals. There is no record of any complaint against her for 9 attending to the call of duty in any emergency. She was paid HRA as she did not opt for or accept government accommodation. No government accommodation to which she was entitled (being type V) is shown to have remained vacant pursuant to her rejection/non acceptance. 21. Suddenly on 1st November 2003, 23 years after her appointment, a government accommodation of an inferior type (type IV) was offered to her and she was forced to accept failing which her HRA was withdrawn and HRA & TA earlier paid were threatened to be recovered from her salary. She has shown that she was offered not only accommodation of lower type (type IV) but an accommodation, which as reflected in the impugned G.R itself was not reasonably maintained or kept in a state of good repair. It was distinctly kept unused for a long period of time and she was compelled to have the same repaired and maintained herself for which the office disclaimed responsibility. We expect the government to treat its servants and officers better and at least not as contemptuously and callously as is demonstrated from the G.R dated 1 st November 2003. 22. The Petitioner has not been offered a reasonable accommodation of the type she is entitled to. She is not bound to accept any accommodation thrown to her together with added responsibilities and duties which she, even under the general law in her position, is not bound to perform. Unless the Respondents offer the accommodation of the type to which the Petitioner is entitled, the Respondents cannot disclaim their duty and responsibility of paying her HRA and TA in lieu of the government 10 accommodation as per the rules and GR governing her and as done in the past. The Respondents are not also entitled to recover the HRA and TA, if any, paid to her in the past whilst she served as a anesthetist. 23. Consequently, in the peculiar facts and circumstances of this case we pass the following order: (a) The Respondents shall pay the Petitioner the HRA as per rules in that behalf, until a government accommodation, to which the Petitioner would be entitled under the G.R dated 17 th February 2001 or any other G.Rs applicable to her and which is in a state of tenable repair and reasonable maintenance, is offered to her. (b) The Respondents shall pay all the arrears from 1 st November 2003 to the Petitioner within 6 months from today. ( c) The Respondents shall not recover HRA or TA already paid to the Petitioner in the past years before 1st November 2003. 24. Rule made absolute accordingly. (SMT. ROSHAN DALVI, J.) (SMT.RANJANA DESAI, J.)