IN THE HIGH COURT OF DELHI AT NEW DELHI +WP(C) No. 271/2007 Sh.H.L. Sharma / Versus $Union of India & Others 1\ CORAM:- *THE HON.BLE MR.JUSTICE A.K.SIKRI Date of Hearing: 01.08.2008 Date of Decision: 20.08.2008 .... Petitioner ,"J Through: Mr.R.K. Saini with Mr.Nikhil Bhalla ..... Respondents Through Mr.R.V. Sinha with Mr.R.N. Singh & Mr.Mukesh Anand for the Union of India. Mr.Rajiv Bansal for the Delhi High Court. THE HON.BLE MR. JUSTICE MANMOHAN SINGH l.Whether Reporters of Local papers may be allowed to see the Judgment? 2.To be referred to the Reporter or not? 3.Whether the judgment should be reported in the Digest? A.K. SIKRI, J • . .. For orders, see file of WP(C) No.672/2006. August 20, 2008 hp. ~~dv-) (MANMOHAN SINGH} JUDGE Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified -_;r;. . \."- /_.,. . ':. : ,. ~-~·~- . . ·,. ·.· .. ·· .· ~ .·.· IN. THE HIGH COURT6F DELHI AT NEW DELHI ; \C./ +WP{C) Nos.f;72/2006, 694/2006, 2416/2006, 2421/2006, 269/2007, 270/2007 271/2007 and 5551/08 #Sh. P·.K. Sharma Sh.R.K. Mehta . S.h.Rajan Jay~mt Sh.S.R. Nautjyal Sh.D.S. Thakur Sh.R.K .. joshi . Sh.H.L. Sharma· Sh.Jagdish Lal Nijhawan Versus $Union of India & Others . 1\ CORAM:·· *THE HON'BlE MR.JUSTICE A.I<.SIKRI Date of Hearing! 01.08.2008 · Date of Decision: ~1) ~08.2008 .... Petitioner in WP(C) No.6~2/06 .... Petitioner in WP(C) No-.6~4/06 .... Petitioner in WP(C) No.2LJ)16/06 .... Petitioner in WP(C) No.2421/06 . . I .... Petitioner in. WP(C) No.269/07 .. .. Petitioner in WP(C) No.27;0/07 .... Petitioner in WP(C) No.271/07 .... Petitioner in WP(C) No.SS:Sl/08 Through: Mr.R.K. Saini with. Mr.Nikhil Bhalla ..... Respondents I . Through Mr.R.V. Sinha with :.Mr.R.N. Singh & Mr.Mukesh Anand for the Union of India. Mr.Rajiv Bansal for the Delhi High Court. THE HON'BlE MR. JUSTICE MANMOHAN SINGH . ·l.Whether Reporters of Local papers may be allowed to see theJudgment?_ 2,To be referred to the Reporter or not? ~eft' 3.~Whether the judgment should be reported in the Digest? . j A.K. SIKRI, J; 1. Afl\he petitioners in these petitions, after their retirement, were appointed '• • • ' I as Special Metropolitan Magistrates· (in short the 'Special MMs') .. Most of WP(C) No. 672/2006 etc. etc. ·Page 1 of 15 ~ . . . ·-----~·~-~.---·-,- .· .':: I· " . (,' "'-•·,.,. : f . •: f'· _\je.· ~. .. . , 1 ' . ~\~ the~e petitioners were th.e employees of the Delhi High Court!from w~er~· thHy retired except one or two p~titioners, who were employed with other ' Government Departments.· · While in service of the ! Delhi High Court/Government service, they were allotted official accqmmodation. After their retirement they were ~ntitled to retain the ·Government . . ' accommodation for a period of t~o· months which could be ~xtended by '· . . ; . i . another two months on payment of particular licence fee, as p1er the rules. , . ' aefor~ t~isperiod could expire they were appointed as Spedal MMs. In ·view· of this appointment, the petitioners claim that they h~ve right to ' ' ' continue to occupy the Government ·accommodation given to l~em while in regular service. Since the respondents have asked them to' vac~te the ·offiCial accomma.dation on the ground that no such right exiyts, in these pei:itions filed by the petitioners their prayer is to quash the 9ction of the resp·b·ndents in. cancelling the retention of the demised flats With further directions to permit them to retain the said official accommodation till they . continue to work as· Special MMs, under the orders of the High. Court of . DeihL . . ; 2. The common question of law, on almost identical facts, in all ;these cases which, therefore, arise for consideration .is as .to whether such right to retain ~the residential staff quarter allotted to them while in service,· on· their appointment as Special MMs. For the sake of convenience we may note of · WP(C) No. 672/2006 etc. etc. :Page 2 of 15 f\ . • ._J,"' •• ~ ...... I \ . . I : .. ...... , ... r .. , . ·a .... __ ,..··· ' . ~ ' . _} . ( .-, \ the. facts as they appear in WP(C} No.672/2006. I 3. The petitioner in this case was worki~g as the Joint Registrar in !this Court at I I . the time when he .retired on superannuation with effect from 28.2.2003. He . ' I ' was the a!lottee and in occupation. of Government accommod~tion bear.ing I , . . I flat No.509, Sector. IX, R.K. Puram, New Delhi-110 022 at that time. Within · • ~ I . ~ • two months of his retirement this Court appointed him as a sP,·ecial MM in . . . '· ! ' . . . . .. , I terms of t~e provisions of Delhi Petty Offences (Trial by Spe'cial !Yietropolitan • • f. . i Magistrate) Rules, 1998 vide notificatio~ dated 29.4.2003. The ~ppointment was fo.r a period of one year but extended from time to time. He tontinued . . : I to work as Special MM, in this manrier, till 28.2.2008 when he 'attained the ·j age of 65 years .. 4 .. On his appointment as Special MM he wanted to occupy the .Government a~co'~modation which was allo~ted to him while in service of th~ High Court. . . I The Registrar General of this Court sent communication datedj7.5.2003 to the Director. of Estates informihg him that since the pet:itioner was a.ppoirited as Special MM vide notification dated 29.4.2003 he be allowed to ' ·, , I retain the staff quarter as per sub-rule (4) 6f S.R. 3'17-B-11. The Assistant Diredbi-' of Estates· thereafter "~'/rote. letter dated 22.10.2603 to the . . . . . I pethioner asking him to clear the rental arrears which were to !the tune of Rs.20,939/-. However, vide letter. dated 20.1.2004 this ah10unt was i corrected as Rs: 7,952/-. The petitioner deposited the said \amount on WP(C) No. 67'2/2006 etc. etc. I rPage 3 of 15 I : '1 C> c:e· ' 21.1.2004. We_ may note that earlier the resp.ondents No\.1 to 3 had . , , I initiated eviction. proceedings against the petitioner in respect of the I demised flat under the provisions qf .. the ·Public Premises 1 (Eviction of " Unauthorised Occupants) vide notification dated 26.8.2003. jThese were I . ' I also· withdrawn and letter dated 5.3.2004 was written by \the Deputy . I Direc.tor of Estates to the Registrar General, Delh; High Court inlforming him i thc:1t it· had·· been decided to allow retention of the staff qu~rter to the· ' . ' ' i ' petitioner for a period of one year, on payment of normal lice~ce fee. The I initial :appointment for a period of one year as Spe~ial MM was extended by I another year vide notification dated 27.5.2004, i.e., upto 29.4.2005. It was · again'· extended. by another year vide notification dated 20.5..2005, upto 29.5.ioo6. I . . . I 5. · It appears that there was a second thought given to the entire issue. In the . ! . morith of June 2005, the petitioner received letter dated 30.5.2005 from the ' ' ' ' ' i Deputy Director of Estates calling upon. him to show cause as: to why the ' permission to occupy the staff quarter granted to him ea~lier be not withdrawn· and the damages be not charged for the period already avai.led of . I ·as retention was given ori the basis of incorrect and misleading i'nformatio.n. ' ' ' The petitioner, vide his letter dated 9.6.2005, sought time to file reply till 1_1.7._2005. Instead of giving any reply; the petition;er brought thi~ fact to the notiCe of the Registrar· General and thus, this Court sent corrymunication WP(C) No. 672/2006 etc. etc. !Page 4 of 15 J' ·, ' 't.' . ;,, . (.; . t } .·,· ;e·.. (r-...\. \, ' -.,..._..,.-· .. ' ....... i ~/ !V ! dated 1.8.2005 pointing out the factual position regarqing ap8ointment of · 1 · . . . I ·I . ·the petitioner as Special MM, which. ,was initially for one y~ar but was I I · extendable on yearly basis upto the age of 65 years. Signific~ntly, in this· . letter t~ere was no 9efinite stand taken abou,t the en~itlerpent of the . ' • ! . p~·titioner to retain the official flat. Instead, factual .narration o~ly was given and the Deputy Director of Estates was r~quested to take necess,ary action in the matter in the light of facts stated about the nature of appointment. .In . ·.t , I response the Deputy Directo-r of Estates wrote letter dated 29.~.2005 to the Registrar General of this Court informing him that the petitione:r was issued a show cause notice dated 30.5.2005 but he had not sent any ~eply till that i Q.ate: Thereafter, another show .. cause notice dated 29.7.2005 was also I isstjed asking him to give his response within seven days. However, no reply . ' . . i was received to this notice either. By impugned orders the retention letter. ' dated 4.3.2004 given earlier was withdrawn. 6. After receiving the said cance·llatiori orders, the. petitioner m~de detailed ! .repres.entation dated 6.9.2p05 submitting that hehad a right to! continue to occupy the said Gen·eral Pool accommodation duri_ng his tenurie as Special MM .. Thi~ plea of the petitioner was·n.ot acceded t~·:by the resp~ndents and therefor~, the matter was referred to the Estate Officer/respondent No.3 for . ' .. .I . initiating proceedings ·under the. Public Premises (Eviction of u 1nauthorised Occupants) Act. He sent notice of hearing to the petitioner. Th.e petitioner i WP(C) No. 672/2006 etc. etc. I 1Page 5 of 15 ... . ,, . .. ·· . ,·' .--~~,-,-~~,......:._---~--~------1·---:--··-----··--;-------. ----- ' __.r:-'. '('~ •. - .. ,.· ~ ... -,. ~~~ was also served with a demand notice asking him to pa~ a. sum of I I . , ' . . I Rs.3,43,850/-· as damages calculated at market rate for occupation of the I ~~ 'demised premises from 1.7.2003 till November 2005. This demand ·notice was dated 27.12.2005. 7. ·On, the i,nitiation of eviction proceedings and the said demand notice, the i . . . ! ·petitioner approached this Court and filed this petition on 14..1.2006. As . . I I I p.ointed out earlier, during the pende,ricy of this petition another extension was giv.en to the petitioner by one year and in this nianner, he continued as· .. ' ·.Special MM till 28.2.2003 when he ceased to hold that position on attaining . I I I the age of65 years·. On almost similar facts other petitioners h~ve also filed . ! · the.petitions praying for sa· me kind of relief. Interim directions were passed . 1 ,' •.,. staying the operation of impugned cancellation orders. 8.· The undisputed facts are that these petitioners were allotted povernment .I . . . . . . accommodation when they were in regular service of this Court or with the· . . . I , . . ' Government. After their retirement they were appointed as ~pecial MMs withiri the period they were entitled to hold the official accommodation from 'the date of their retirement. On this basis, the submi~sion of the petftioners is that they are entitled to continue to occuP,y the staff . ' accommodation iri terms of SR-317-8-11. As the right is predicated on this provision, it would be apposite to r~produce the reievant portion thereof:- · .''S.R. 317-8-11. (1) An'allotment shall be effective fro+ the date on which it is accepted by the officer and ! shall ' WP(C) No. 672i2006 etc. etc . ;Page 6 of 15 . I. ,.., C . ,; ) ,• ,.;- .• .·· . continue.in force until,- (a) the expiry of the concessional period 'permissible· under sub-clause (2) after the officer ceases to 1be on duty in an eligible office in Delhi. · ~ i (b) it is cancelled by the Director of Estates or is de;emed to have been cancelled under any provision iri 'these rules; (c) it is surrendered by the officer; or I' {d) the officer ceases to occupy the residence. (2) xxxxx . {3) xxxxx · (4) An officer who has retained the residence by vidue of I the concession under Item {i) or Item (ii) of the Table ?elow sub-rule {2) ~hall, on re-employment in an eligible qffice, within the period speci.fied in the said Table, be entitled to reta.in that residence and· he shall also be eligible fo,r any· further allotment of residence under these rules: Provided that if the emoluments of the officer on su~h re- employment do' not .entitle him to the type of residence . occupied by him, he shall be allotted a. lower type of residence:".· 9. As· per sub~rule (a) of sub-rule {1) of S.R. 317-B-11, the Government officer is permitted to occupy the staff quarter for a particular period rrlentioned in . . . I sub.:.rule {2); In case of retirement, the. peri()d prescribed is !Wd months on · normallicenc~ fee and another two months on do.uble licence fee. Sub-rule ' . , ' I {4); however, provides that.if such an officer is re-employed i~ an eligible office within the aforesaid permissible period, which is four months in those WP(C) No. 612/2006-etc. etc . ipage 7 of 15 . 1 .. · .. ,, ~,- f'· ... ...... ~ • '·. ~- . ~/ ~~ ' i cases when Government servant retires, he would be entitled to retain the . . . . I . residence.~ The conditions which need to be satisfied are:- . (a) such retired Government employee gets re-emplo~nient;_ · ·(b) this re-employment is.glven in an eligible office~ anp ' I (c) he is able to secure the re-employment within the',period he is . . . ! entitled .to reta.in the staff quarter after his retirement as mentioned in column :(2) of the Table provided in rub-r:ule (2). · '. l . . . 10. The petitioners fulfill the third condition. However, the moot question is as to whether the ·appointment of .Special MM would 'amount to ''re-employment" and whether it is in an "eligible office". i I I .11. Mr.S~ini, learned counsel appearing for the petitioners, submit~ed that the appointment ofthe petitioners was treated under S.R. 317-B-1] as not only ' · ' . . . ! . . . I . after-~heir employment the Registrar General of this Court wrote letter to I the Estate ·officer that they were entitled to retain the demised'flats un'der the sa_id provision; even the Directorof Estates held the same Jiew, as only ri.o'rnial licence fee was dema~ded from the petitioners and the ~ction taken !' t()r · e·viction was· also withdrawn. In support, he referred to the . • , I , , communications exchanged between the Registrar General of this Court and . . . . . . \ I . the ··_Director of Estates, which has already been narrated abov:e. Mr.Saini ~ . I also. referred to Swami's Compilation on "Re-employment of! Pensioners . . (Civilians ·and Ex-Servicemen)", Chapter V whereof deals with the procedure · . WP(C) No~ 672/2006 etc. etc. !Page 8 of 15 ·('\ ... \ . .-' •. I ~Jo ' I for. re'-employment bf civil pensioners and, inter alia, stipulates a:s under:- ' I "Terms 'extension' and 're-employf"'ent' distinguished.-A. need has been felt to distirlguish . the cases in which retention of the servic;es .<;>f Government servant beyond the date of his superannuation is to be treated as 'extensif>n of · service' as also those in which it shall be treated as 're-employment' and the following decisions: ha.ve i been reached:- · (i) .· ( i i) Where the services of a Government servant I beyond the age of his superc:~nnuatioh are required in the sam~ cadre/post which! he is . . . ! holding ·at the time of superannuation,· then ! such retention shall be treated as "extension of service'~;, ' i Any proposal for retaining: the services1 of a Government servant in .the parent · tadre beyond the normal age of superannuation in . . . . I a post .different from the one which he was holdingatthe time of superannuation, sbould be strongly discouraged; If, however,! such I retenti.6n is for very exceptional reasons considered to be una~oidable, the sam~ shall be treated as "re-employment"; and ...... '~ ·-. 12. He laid emphasis on. clause (ii) above in his endeavour. to sho~ that it was· "re-employment" .. His submission was that the appointment Was made by the High Cou~t, 'that too vide notification. The petitioner was under the I . di~ciplinary control of the High Court and should be··treated as ~mployee of . the High Court when· he was working as Special MM. Reference in this i beha.lf was also made to the Delhi Petty Offences (Trial\ by Special I Metropolitan Magistrate) Rules, 1998 .. He also submitted that, Member of .r. WP(C) No. 672/2006 etc. etc. lpage} of 15 ,.• ·} . '··, \ ' c~~ . I the National·consunier Disputes Redressal Commission are alloJed to retain . . .. . I , th~ staff-quarters. I 13. We are. unable to accept the aforesaid submissipn of Mr.S~ini, learned · c.ounsel for the petitioners. The appointment as. Special Mrv;l cannot be • I ' treated as extension of service or (/retention" after: .retirement in: the (/parent I cadre." Complete answer to all these submissions is prov 1 ided in the . • • . ' j . judgme'nt of the Supreme Court in Kadra Pahadiya and others v. State. of Bihar, AIR 1997 SC 3750 which gives unequivocal description about the natur~ of appointment of Special MMs. It is on t~e basis of direhions of the I Supreme Court contained in the. said judgment that Sch'emes were I . . . formulated by the High Courts for appointment of Special MMs. ! . . . . . I 14. The Supreme Court in that case was concerned with the <,JVer-flowing , I . ' . ·;..., .. docket~ of the Magistrates all over .the country. It was noticed t~at the main • .• · I . reas'on for which .the Maglstrates wer'e over-burdened was num 1ber of petty cases assigned to them. l'he Court was of the view that if thes~ petty cases a~e taken out of the courts of regular Magistrates and dispos~d of by th~. ' I appointment of Special MMs in sufficient numbers, the regular courts would '>. I· . . be free· to dispose of serious cases faster and that would meet .the . . . I re.cjuirement of speedy justice. The Supreme .Court tr·ated the powers of the ' I High· C9ui"t under Section 13(1) and 18(1) of the Code of Crimin~l Procedure to m·ake such appointments and confer such of the powers as it deems I . . WP(C) ,!'~o. 672/2006 etc. etc. Page 10 of 15 . ! . 'l, ', ·,4 .\... ~~/; ,• ' C' •... ·· . I . . ! . ' ,:;., '· . I • ' . :' . • I ..·• <'· i . , I prop~r from the whole bundle of powers conferrable by and un9er the Court of Judicial Magistrates of the First and Second Class or conf~rrabie on a Metro;olitan Magistrate, a .. s the case may be. With this objec~ive in mind notfces were issued to all the State Governments except Jammu 'and Kashmir . . . . . ! . . ·' . \ as well as the Central Government to indicate whether or not th;,e concerned I States had invoked the afores~id provisions and if not, the reasq.ns therefor. ' I ' I . Thl: various State Governments, Union Territories as well as l the Central I Government provided requisite information to the Supreme Co~rt, which is taken·n()te in ·the said judgment on the basis of which it was ol?served that I prc:~ctically every State had ·paid attention to the provisions ofi Sections 13 and 18 of the Cr.P.C. In para-23 ofthe said judgment the Court underlined I i the nature of appointment of these Special MMs. As we are concerned with . . ' I I I precisely this very aspect in these petitions, we deem it proper t'o reproduce . . ! . this para. in its entirety:- ,' ·. "23. There can .be little doubt that when the ·• calendars of criminal courts .(magistracy) in most of . . . . . . I . the .States, barring a few geographically small States, . . . are clogged and a~ a result, trial of cases is del 1ayed, · there is no justification ~or not setting a part qf the machinery envisioned by the Code into motion, The . basic idea in prov.iding -for the appointmeht of · Judicial Magistrates, second class, is to ensur~ that. petty cases do riot occupy the time of the regular I · .. magisterial courts .. so also the idea underlyin~ the provisions for the appointment of Special Ju,dicial · Magistrates/Special Metropolitan Magistrates ynder Sections 13(1) and 18(1) respectively, is to relieve thE: regular courts of the burden ·of trying those ,I . WP(C) No. 672/2006 etc. etc .. P:age 11 of 15 . I ,:'"=['"'!_ . '. ·.· '.· ~·· )"· ;f?~~ -~ I , ~. . .(", \ .• ,· @' cases which could be disposed of by is~ I Magistrates.. Parliament has advisedly left the decision as to the choice of power to be conferred I on such Magistrates with the High Court.. Orce a request is receive~ from the. C.entra~1Sta~e · . Government .by the H1gh Court, the ball IS entlrtely 1n the High Court, and it is the High Court and th~ High Court alone which has to decide on the number of appointments to be made, the choice of personnel 'to be entrusted with such power, and the extent of power to be conferred on such persons. It is the High Court which has to specify the qualification and/or experience that would be required fqr the discharging of duties by such Magistrates.! As pointed out earlier, the period for which i such ··appointments may be made must not excee~ one year at a· time, .which shows that these ar~ not . . I appointments by way of regular entry into service, and are meant to be short-duration appointmehts to , . I reduce the burden of pendency in .regular Courts. In . . I our view, the appointees should view the call as a ·social obligation and not employment; indeeq, as a social service to society. That is-the spirit of Sectio.ns . 13 and 18 and every appointee must take the call in that spirit and not expect payment·as if they $re in the service o,f the concerned State/Union Territory. That is the reason why the said two provjsions expect persons who have retired or are abo;ut to retire from Government service to be appointed,to help clear the pe~dency. Viewed from this an,gle it seems ·fairly clear to us that retired Judicial Off;icers, officers of the Registry of District Courts and! High . Courts, as well as ·other Government servants: who · have. the specified experience and .qualificatiori, can be requested. to accept appointments as part of social service and they may be paid a fee to :meet their out-of-pocket expenses and honorarium.. We are sure that the High Courts will find any number of, public spirited, retired persons available to exten,d a· helping hand to the Criminal Justice System in the . country. The High Co.urt, we must add by w~y of caution, must be extremely careful in the . WP(C).No: 672/2006 etc. etc. ' Page 12 of 15 {, I /-"'\