HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’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.Hemalatha …Appellant AND Govt. of A.P., General Administration Department (Accommodation), Secretariat Building, Hyderabad, Rep. by its Principal Secretary & Another. Respondents. WRIT APPEAL No.411 of 2009 Between: Govt. of A.P., General Administration Department (Accommodation), Secretariat Building, Hyderabad, Rep. by its Principal Secretary …Appellant AND Smt.Y.Savithri & another Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’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 are directed against the very same order of the learned single Judge allowing W.P.No.20757 of 2008, dated 30.12.2008. The writ petitioner, who was working as Assistant Section Officer in General Administration Department claims to be entitled for allotment of “A” type quarter but was allotted “B” type quarter by the Government in Memo, dated 28.1.2004 bearing No.B-101, Government Quarters, Patigadda Colony, Begumpet, Secunderabad and having taken possession thereof, she is presently residing therein. While so, she made a representation to the Government for allotment of “A” type quarter and the Government considering her representation issued order in G.O.Ms.No.946, General Administration (Accom.) Department, dated 20.12.2007 allotting her “A” type quarter bearing No.A-17, Government Quarters, Patigadda Colony, Begumpet, Scunderabad, on exchange basis subject to the terms mentioned therein. One of the conditions mentioned in the allotment order is that if she fails to take possession of the quarter within fifteen days from the date of allotment order, she is liable to be debarred for a period of two years for purpose of allotment of Government quarter and she should intimate the date of occupation of the quarter allotted to her. She could not occupy the quarter as the incumbent namely T.Satyanarayana, who is in occupation of the said quarter, did not vacate 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 in the writ petition, who was in occupation of “C” type quarter made an application for allotment of “A” type quarter, but the Government vide orders in Memo, dated 18.7.2008 informed her that she is not eligible for allotment of “A” type quarter. Thereafter, it appears, by memo, dated 6.8.2008 she was informed that quarter No.A-18 was already allotted to some other office, and therefore, she may choose any other vacant quarter. Later, the second respondent, who was in occupation of “C” type quarter made an application for exchange of quarter A-18 and the same has been rejected by the Government vide memo, dated 18.7.2008. Aggrieved by the same, second respondent approached the then Hon’ble Chief Minister by way of a representation. The Government in exercise of the powers under Rule 20 of the Allotment of Government Quarters Rules, 1973 (for short ‘the Rules’) allotted quarter No.A-17 to the second respondent in exchange of her quarter No.C-30. While allotting “A” type quarter to second respondent, the Government cancelled the allotment made to the writ petitioner earlier in G.O.Ms.No.946, dated 20.12.2007 through the impugned G.O.Ms.No.586, dated 12.9.2008. Questioning the same, the above writ petition has been filed contending that when the first respondent in the writ petition has categorically observed that the second respondent is not entitled to “A” type quarter and though she was asked to choose any other quarter among A-2,,A-3,A-12,A-15 and A-16, again allotting quarter No.A-17, which was earlier allotted to the writ petitioner is illegal and in sheer violation of the principles of natural justice. Further the cancellation of allotment of quarter No.A-17 made in favour of the writ petitioner and allotting the same to the second respondent is without any notice to the writ petitioner and that the second respondent is junior to the writ petitioner and drawing less pay than the petitioner, and therefore, the writ petitioner is entitled to priority in allotment of quarter. Said Satyanarayana, who was in occupation of quarter No.A- 17 had not vacated the same, and therefore, the petitioner could not occupy the said quarter within the time prescribed in G.O.Ms.No.946 but after allotment of the said quarter to second respondent through the impugned G.O., he proposed to shift his quarter to the quarter occupied by the second respondent on exchange basis, and therefore, there is collusion in between T.Satyanarayana- occupant of A-17 quarter and the second respondent and the Government facilitated them to defy the order in G.O.Ms.No.946 and prevented the petitioner from occupying the said quarter. The Principal Secretary to Government, General Administration (Accommodation) Department filed a counter affidavit admitting that the representation of the writ petitioner was considered favourably and allotment orders were issued in G.O.Ms.No.946, dated 20.12.2007 allotting quarter No.A-17 on vacation of the same by the incumbent. The application of the petitioner is governed by Rule 13 of the Allotment of Government Quarters Rules, 1973. The petitioner is working as Assistant Section Officer and as per her eligibility, she is entitled for B-type quarter but not A-type quarter. The petitioner is not a Junior Officer (Assistant Secretary cadre) to be eligible to be allotted A-type quarter and that the petitioner is only a 3rd category officer under rule 3(3) of the said Rules. The application of the second respondent for exchange of Quarter No.A-18 has been rejected by the Government through Memo No.24808/Accom.B/08-1, dated 18.7.2008. Aggrieved by the same, she approached the then Hon’ble Chief Minister and submitted a representation. Exercising the power under Rule 20 of the Rules, quarter No.A-17 was allotted to the second respondent in exchange of her quarter No.C-30. While allotting A- type quarter to second respondent, the Government cancelled G.O.Ms.No.946, dated 20.12.2007 through G.O.Ms.No.586, dated 12.9.2008. It is also admitted that the Estate Officer submitted a report stating that T.Satyanarayana, Assistant Secretary (Retd.) has vacated the quarter on 24.9.2008 and the physical possession of the said quarter had been handed over to the second respondent on 26.9.2008. It is stated that the case of the petitioner will be considered for 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 said quarters by submitting a written requisition and the same will be examined by the Government. Second respondent in the writ petition has also filed a counter affidavit stating that the Government by relaxing the Rules in exercise of powers under Rule 20 of the Rules allotted “B” type quarter and now she is residing at B-101 at Patigadda, Government Quarters, Begumpet, Secunderabad. Later she was allotted “A” type quarter bearing quarter No.A-17. The writ petitioner being an employee of the Secretariat and holding a civil post cannot file the writ petition directly before this Court and only after exhausting remedy before the A.P. Administrative Tribunal, she can approach this Court and therefore, the writ petition as such cannot be entertained. The learned single judge after calling for the note file in allotting the quarter to the second respondent, observed that the note, which emanated from the desk of the Principal Secretary to Chief Minister, in fact, states that the Hon’ble Chief Minister has agreed for allotment of quarter No.A-18, Patigadda Colony to second respondent in relaxation of the Rules and necessary orders may please be issued. The said note only states that the Hon’ble Chief Minister had agreed for allotment of quarter No.A-18 to second respondent, but it nowhere states that second respondent should be allotted quarter No.A-17, much less by canceling the earlier orders issued by the Government in G.O.Ms.No.946, dated 20.12.2007, allotting the said quarter to the writ petitioner. It was held that the allotment of quarters on the basis of size of the family of the employee can never be the criteria for allotment, but it should be based on the post one holds in the administrative hierarchy and the salary he draws and therefore, the ground on which the second respondent sought allotment of “A” type quarter stating that she is having large size family, which is not even reflected in the impugned G.O. cannot be countenanced and the impugned G.O. issued by the Government canceling the earlier G.O.Ms.No.946, dated 20.12.2007 allotting quarter No.A-17 to the writ petitioner and allotting the same again to the second respondent is without any reasons and basis. In the absence of any direction to cancel the earlier order issued by the Government in the note file, canceling the allotment of quarter made in favour of the writ petitioner is not only arbitrary but also illegal and accordingly, the learned single judge allowed the writ petition quashing the impugned G.O. Questioning the same, second respondent filed W.A.No.86 of 2009 and whereas, the Government filed W.A.No.411 of 2009. A preliminary objection has been raised by Smt. B. Neeraja Sudhakar Reddy, learned counsel appearing for the appellant in W.A.No.86 of 2009 that the allotment of quarter is a service condition and therefore, the writ petitioner has to approach the tribunal first and only after exhausting such remedy, she can file the writ petition and therefore, the writ petition directly filed before this Court shall not be entertained and the same is liable to be dismissed. To substantiate that the allotment of quarter is a service condition, reliance is placed on 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 in W.A.No.411 of 2009 while reiterating that the allotment of quarter is also one of the service conditions and this Court has no jurisdiction to entertain the writ petition, failed to substantiate the impugned Government order except stating that the Government though earlier rejected the request of the second respondent stating that she has no eligibility for allotment of “A” type quarter, the then Hon’ble Chief Minister in relaxation of the Rules allotted quarter to her and therefore, unless the power of relaxation is challenged, the writ petitioner cannot succeed in the writ petition. Both the counsel appearing for the appellants failed to point out any rule under which the writ petitioner or the second respondent are entitled to rent free accommodation or a government quarter in lieu of House Rent Allowance. It only provides payment of House Rent allowance, which is different from place to place, which will be calculated on the basis of the basic pay drawn by the employee. Allotment of Government Quarters Rules, 1973 issued by the Government of A.P., which governs the allotment of government quarter only provides for allotment of quarters without discrimination and arbitrariness in allotting such quarters and the said rules are not framed as one of the service conditions of the employees and the Rule itself says that the Rules apply to all the Government Quarters at Hyderabad and Secunderabad under the control of General Administration (Accommodation) Department. Rule 4 of the Rules for Allotment of Government Quarters deals with eligibility of the employees for allotment of the quarters. As per Rule 4(1) all the employees of the Government of A.P. who are holding posts in offices in Greater Hyderabad are eligible for allotment of the Government quarters and as per Rule 4(2) an employee in need of a Government quarter may apply to the appropriate authority in the prescribed form. An employee who owns a house within the limits of the Municipal Corporation of Hyderabad or within the periphery of 8 K.Ms. from those limits, which is his place of duty, shall not be eligible for allotment of a Government quarter irrespective of such house or flat is (a) inherited; or (b) acquired; or (c) constructed by him with or without the house building advance obtained from Government or any other agency; or (d) obtained under a hire purchase scheme; or on rental basis from the A.P. Housing Board, or from any other agency. In the judgment in Karamchari Union, AGRA (referred to supra) on which reliance is placed by the learned counsel for the appellant in W.A.No.86 of 2009, it was held that the House Rent Allowance is part of income which constitute a taxable income for the purpose of computation of the income tax, but cannot be treated it as a service condition. There is no compulsion for the Government employees to occupy the Government quarters and there is no rule that as long as the vacant quarters are available they are not entitled to house rent allowance. In view of the same, unless the Government is obligated itself to provide a rent free accommodation under the service rules, it cannot be said that it is one of the service conditions to claim allotment of quarter as a matter of right before the Tribunal and to oust the jurisdiction of this Court from entertaining such writ petitions. Therefore, the contention that this Court has no jurisdiction to entertain the writ petition unless the petitioner approached the Tribunal in the first instance does not merit consideration and the same is accordingly rejected. Admittedly, the writ petitioner was allotted quarter No.A-17 in relaxation of the Rules. It is not the case of the Government that the second respondent is eligible for allotment of “A” type quarter and the writ petitioner, who is ineligible, was allotted the quarter ignoring the claim of the second respondent. Further the second respondent is junior to the writ petitioner and she is entitled to only “C” type quarter but not entitled to “A” type quarter. Merely because the second respondent had some influence at Chief Minister Pashi, she is not entitled to claim priority right over the writ petitioner. Once the Government relaxed the Rules in favour of the writ petitioner as well as the second respondent, the second respondent now cannot plead that the writ petitioner is not entitled for allotment of “A” type quarter. If the said contention of the second respondent is to be accepted, equally, the second respondent is also not entitled for allotment of “A” type quarter. Once the request of the second respondent for allotment of quarter 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 quarters naming the quarter bearing Nos.A-2,A-3,A-12,A-15 and A-16, it is incumbent upon the second respondent to choose either of the quarters specified in the said memo. When the second respondent made a representation to the then Hon’ble Chief Minister, by exercising the discretionary power under Rule 20, the then Hon’ble Chief Minister relaxed the Rules for allotment of “A” type quarter in her favour. The said relaxation is only for eligibility of second respondent for allotment of “A” type quarter, but not with regard to the quarter bearing No.A-17, which was already allotted to the writ petitioner. The note file as extracted by the learned single Judge also does not indicate allotment of A-17 quarter in favour of second respondent by canceling the earlier order issued in G.O.Ms.No.946, dated 20.12.2007. If that be the note file, the persons, who are working under the General Administration, in their over anxiety either to please the then Hon’ble Chief Minister or to please the second respondent, appears to have issued the impugned G.O.Ms.No.586 by canceling the earlier G.O.Ms.No.946 allotting A-17 quarter to the writ petitioner, without recording any reasons. It is well settled that when the impugned order does not indicate any reason for cancellation of allotment of the quarter, the same cannot be supplemented in the form of counter affidavit. Once an allotment order is made in favour of the writ petitioner, a right is accrued to her in the quarter and even if the authorities want to cancel the said quarter, she is entitled to a notice explaining the reasons for such cancellation and she should be provided an opportunity to submit her explanation. Hence, the impugned order is not only violative of principles of natural justice but also arbitrary and illegal as the impugned G.O. was issued only to confer a boon to the second respondent, which has been elaborately explained by the learned single judge in his order. In that view of the matter, this Court is not persuaded to take a different view than the one taken by the learned single Judge. The Principal Secretary to General Administration (Accommodation) Department not only blindly issued the impugned G.o.Ms.No.586 contrary to the note file but also tried to justify his action and forced the writ petitioner to knock the doors of this Court. Therefore, W.A.No.411 of 2009 filed by the Government is dismissed with costs quantified at Rs.10,000/- payable by Mr.Prabhaker Thomas, Principal Secretary to General Administration (Accommodation) Department, to the writ petitioner. The Government of A.P. is directed to recover the said costs from the salary of said Prabhaker Thomas and pay the same to the writ petitioner within a period of four weeks from the date of receipt of a copy of this judgment and report compliance of the same. W.A.No.86 of 2009 is also dismissed with costs of Rs.10,000/- payable by the appellant therein to the A.P. State Legal Services Authority, Hyderabad within four weeks from the date of receipt of a copy of this judgment. ________________ A. GOPAL REDDY, J. _______________ C.V.RAMULU, J. DECEMBER 30, 2010 Tsr.