* IN THE HIGH COURT OF DELHI AT NEW DELHI aJ.+ LPA 256/20t0 RAMESH KUMAR ..... Appellant Through: Mr. R.K. Kapoor, Adv. NEW DELHI MUNICIPAL COUNCIL & ANR ..... Respondents Through: Ms. Madhu Tewatia, Ms.Siddhi Arora, Advs. for NDMC , CORAM: I HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA ORDER 11.03.2011 Heard VIr. R.K. Kapoor, learned counsel for the appellant and Ms.Madhu Tewatia, learned standing counsel for the respondent-NDMC. 2. The present intra-Court appeal is directed against the order dated 28.10.2009 passed in WP(C) No.1037212004 whereby the learned Single ra Judge has declined to grant relief to the writ petitioner-appellant. The appellant seeks mandamus commanding the respondent authorities to regularize Quarter No.31 (11), Gandhi Sadan, Mandir Marg, New Delhi in the name of the appellant which was earlier allotted to his father. 3. It is not disputed that the appellant was working with the New Delhi Municipal Corporation (for short 'the NDMC') as a Khalasi in the Auto o Digitally Signed By:AMULYA 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 Workshop since 1.11.1990. He had applied to the respondent-NDMC for regularization to his post, but the authorities instead of regularizing, terminated the services of the appellant while his juniors were allowed to continue. Eventually, the matter was referred to the Presiding Officer, Labour Court No. VII, Delhi forming the subject matter of I.D. No.32l2000 and the Labour Court by order dated 15.12.2003 recorded a finding that the termination of services of the appellant was illegal. As a fallout of the said conclusion, the appellant was granted consequential benefits. 4. It was contended before the learned Single Judge that by virtue of the award passed by the Labour Court, the appellant was entitled to be allotted Quarter No. 31 (11), Gandhi Sadan, Mandir Marg, New Delhi. The learned Single Judge referred to the Conditions of Allotment/Regularization on Retirement of Allottee and also to the Conditions of Regularization/Allotment on Death of Allottee. For the sake of a completeness, we also reproduce the same: "Conditions of AUotment/Regularization on Retirement of AIlottee (, The ward/spouse/daughter-in-law (hereinafter called the 's'uccessor allottee') is a Govt. employee eligible for ac commodation from general po ol. (i, The successor allottee should have been residing with the retired employee for 3 years immediately preceding retirement and should not have drqwn HRA for that a period. In case, however, a person is appointed in Government service or transferred to the place of posting of the retiring Government servant any time within a period of three years preceding the date of retirement, the period .fro* the date on which he zs so appointed/transferred would be considered fo, the purpose. (ii, Retiring employee or any member of his family should not own a house in the place of duty of the dependent/relation. (in) If any other dependent of the retired allottee is already in occupation of Government accommodation, the eligible dependent shall not be allotted the quarter. All dues for the accommodation occupied by the retiring employee should have been cleared. Ol Normal licencefee of the allotted quarter shall be paid. Conditions of Regularization/Allotment on Death of Allottee The eligible ward/spouse/daughter-in-la,v (hereinafter called 'the successor allottee') of deceased allottee shall be given allotment on the following conditions: (, The successor allottee is a Govt. employee entitled fo, general pool accommodation, or secures Govt. employment within 2 years after the death, provided the accommodation in occupation has not been vacated. (i, The successor allottee should have been residing with the deceased at least 6 months prior to his death. (ii, The deceased employee or any the successor allottee does not own a house orflat at the place of duty. (it If any other dependent of the deceased allottee is already in occupation of Government accommodation, the I (') ) eligible dependent shall not be allotted the quarter. Normal licencefee of the allotted quarter shall be paid." 5. On a perusal of the aforesaid Regulations, it is quite clear that if a ward/spouse/dauther-in-1aw, of a Government employee is eligible for accommodation from the General Pool and fuither if he fulfills certain conditions, on satisfaction of the conditions, he shall be allotted the quarter. After the retirement of the father of the appellant, as the factual matrix would show, the appellant did not apply for the retention of the quarter. The father of the appellant retired on 31.12.2002. By that time, the dispute between the management of NDMC and the appellant was pending. By virtue of the award, the appellant has been regularized w.e.f. I.4.1999. The learned Single Judge has rejected the claim of the appellant on the ground that he was not on a regular muster roll of NDMC and the subsequent event cannot come to his benefit. 6. It is submitted by Mr.Kapoor, learned counsel for the appellant that the learned Single Judge has falleri into error by holding that the appellant was not a regular muster roll employee and hence, he was not entitled to have the retention of the quarter. On a query being made whether a regular muster roll employee is entitled to retain the quarter, Ms. Tewatia submitted that he would be able to retain the quarter he files an application within two (") J I e t months from the date of retirement/death of the ex-employee. In this context, she has referred to the instructions relating to Regularization/ Allotment to Ward/Spouse/Daughter-in-Law on Retirement/Death of Allottee. The said instructions read as follows: "Submission of Applic The application for regularizalion/allotment shall be submitted within a period of two months from the date of retirement of ex- allottee and in case on death within 2 months.fro* the date of death of ex-allottee or date of appointment d successor allottee in Government service, whichever is late. The application shall be accompanied by an Affidavit 3 by the retired fficial. " Consequences of Non-submission of Application within the stipulated time I If application for regularization is not submitted within the stipulated time, the applicant shall become ineligible for regularization or for allotment of alternate accommodation. Even if question could not be allotted within the permissible retention period." 7. As has been indicated earlier, the father of the appellant retired on 31.12.2002 and the possession was taken over. The award came to be passed on 15.12.2003. As per thb award, the appellant became a regular SlsigJgkmployee w.e.f. I.4.1999. The said award was challenged by the respondent-NDMc forming the subject matter of WP(C) No.1493112004. Be it noted, during the pendency of the dispute before the Labour Court, the respondent-NDMc took the appellant back but did not confer him the status. \\ .' )/ c However, status was conferred by the award dated 15.12.2003 w.e.f. 1.4.1999. It is not disputed that the appellant was given the regular status as is reflectible from Annexure-A5. The said communication reads as follows: ,,NEW DELHI MUNICIPAL COUNCIL PALIKA KENDRA: NEW DELHI ELECTNC ESTAB LISHMENT-II OFFICE ORDER //o. S. O. (EE-II)/707/SA-I Dated: 25.3.2009 { In continuation of posting order No. S.O. (EE- ID/2067/SA-L dated 04/07/2008 and ffice order No. S. O. (EE- II)/2243/SA-1 dated 21.07.2008, with the prior approval of Secretary NDMC dated 03.07.2008, Shri Ramesh Kumar, s/o Sh. Harigun Singh, RMR Khallasie (Auto) appointed to the post of Khallasie on adhoc basis on consolidated salary Rs.4404/- p.m. w.e.f. O scale o Rs. 3 05 0-484 5 (SS-Scale) (including H. His pay is fixed at Rs.3050/- p.m. w.e.f. 0l/04/Iggg. \ 2 sd/- DY. DTRECTOR (ELECT.)" ' 8. In view of the aforesaid, the contention raised that he applied late and not within two months from the date of retirement/death has to melt into insignificance. It is rightly stated by the appellant that the respondent took their time to implement and execute the award and the appellant cannot be penalized for the default and delay of the respondent. The learned Single ) l e Judge, as is vivid,inparagraph 10 has observed as follows: "10. .... As per the rules of NDMC, petitioner should have been entitled to the house on the date of retirement of his father, inasmuch as the desired allottee should have been on the regular muster roll of NDMC, and subsequent events cannot benefit the petitioner. In my considered opinion, the petitioner would be entitled to a Quarter as per his own status and seniority and cannot derive the benefit of Conditions of Re gul ariz ation/ Allotment to War d/ Sp ous e/D aughter- in-Law on Retirement/Death of Allottee, Rules .... " 't 9. Nothing has been brought on record that a regular muster roll If employee will be entitled to the similar quarter which his father occupied. In the absence of the same, we only modifu the order of the learned Single Judge to the extent that the case of the appellant in accordance with Rules/instructions in vogue by treating him as a regular muster roll employee on the date his father retired. 10. With the aforesaid modification in the order of the learned Single Judge, the appeal stands disposed of without any order as to costs. I v' MARCH II,2OTT pk /ftr^'"/ CHIEF JUSTICE -7 ./C l( r / - tl L l' SANJIV KHANNA, J -- Frq)n B,o-i'-r P..[ ' >ezltt \ 26 32 * o/, IN THE HIGH COURT OF DELHI AT NEW DELHI LPA 25612010 RAMESH KUMAR ""' APPellant Through: Mr. R.K.KaPoor, Adv. versus NEW DELHI MUNICIPAL COUNCIL & ANR ..... Respondents Through: Mr. Nilava Banerjee, Adv. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.V.EASWAR ORDER 04.0L.20t2 Rev. Pet. No.293l201L On 2nd January, 20t2the following order was passed:- ttl-earned counsel for the respondent states and admits that applicant was appointed as a regular employee w.e.f. l't April, 1999 and, therefore, is entitled to atlolment if he fulfills the pre-conditions mentioned in the applicable policy. It is, however, submitted that the policy enclosed *ith th. affidavit filed on 8'h September, 201I, is clear and reads as under:- "B. The etigible dependents will be allotted accommodation one type below his/her entitlement, provided that in no case except otherwise so specified, allotment will be made to a higher type of quarter than in occupation of the retiring Govt' employee. Provided further that where the eligible Govt. servant is entitled to Type II or any Higher type of accommodation, he/she will be allotted u..o-*odation in Type II on adhoc basis even if the retiring employee was occupying type I accommodation." 27 ,t It is submitted by the respondent that the applicant in terms of the said policy cannot be allotted Type II accommodation which was under occupation of his father before retirement and is instead entitled to Type I accommodation, which the respondent is willing to offer him and was in fact offered to the applicant earlier. Learned counsel for the applicant submits that this policy was not relied upon by the respondent in the writ petition and before this Court when otd.t dated 1lft March,20!!, was passed. He prays that one day's time be granted to him io obtain instructions from the applicant with regard to this policy. It is made clear that no adjournment will be granted on the next date. List on 4'h January,2012.' The appticant has now filed reply to the additional affidavit enclosing therewith letters of allotment/offrce orders wherein Type II quarters have been allotted on compassionate ground on retirement of family members' The applicant has also filed copy of the reply dated 16fr June, 20lI under the Right to Information Act, 2005. In the reply the respondents have admitted that Type II quarters have been allotted by the competent authority in accordance with Rules by deducting 3 times license fee and they had applied within two months after retirement of their father' The applicant cannot plead negative equality. The respondents have placed on record copy of the policy and clause (B) thereof which has been reproduced in our order dated 2"d Jaruary, 2012. It does appear that the 2A respondents in some selected cases have violated the clause (B). This is unfortunate as the policy which has been adopted should be implemented in letter and spirit and no favoritism should be shown' However, for the said lapses, we cannot-cgnfer any right or benefit on the applicant as Article 14 is - T'.tt^-| *t- a nositivel#d cannot be construed in a negative manner to confer a right in violation of the policy/executive instructions. The respondents are bound by the policy and should adhere to the same' At this stage leamed counsel for the applicant states that he has been trying to get allotment of Type II quarter as he was residing in his father's accommodation but would be satisfied in case Type I quarter is allotted near Moti Bagh as his children are studying in Moti Bagh atea' We feel that the applicant's request is justified. The respondent will make allotment of type I quarter near Moti Bagh area within a period of six weeks. In case no quarter is available in Moti Bagh area,the respondent will allot a quarter in Lodhi n' Colony area.In case of any difficultyrliberty is granted to the parties to approach the Court. Application for review is disposed of' /Lla -'tl SANJIVKHANNA, J I N -*^ ,. R.V.EASWAR, J JANUARY O4,2OI2 mm