Case: UNION OF INDIA &amp; ANR Vs. OMKAR NATH DHAR (D) THROUGH L.Rs

Transit Accommodation units are being constructed for Kashmiri Migrants Employees in various districts of Kashmir Valley at an estimated cost of Rs.920 Cr. So far, 1,025 dwelling units have already been constructed which include 721 dwelling units in the district of Budgam, Kulgam, Kupwara, Anantnag and Pulwama. Another 1,488 units are under construction and land has been identified for about 2444 units. 11. We do not find that any modification is required to the order dated 5.8.2021. In J.L. Koul, an affidavit of Chief Secretary of the State was filed disclosing that out of 54 appellant/Migrants, 23 had already vacated Government accommodation whereas 31 Migrants were still occupying the Government accommodation. The appellants were allotted residential accommodation at Jammu in the year 1989-1990 being Government servants. The writ petitions were filed before the High Court in the year 1995 which were decided by the learned Single Bench. Aggrieved against the directions issued by the learned Single Bench of the High Court, the occupants filed intra-court appeal before the High Court which was dismissed. Still further, appeal was filed before this Court. 12. This Court noticed that during the period of 12 years when the matter remained pending, directions were issued to prepare a Rehabilitation Scheme which was ultimately prepared and placed on record by the Chief Secretary of the State. Accepting the Scheme, it was held that no further action/direction was required. However, the appeal was disposed of with a pious hope that the State shall take all endeavours to rehabilitate the persons who have been victim of terrorism and till the State is able to rehabilitate and provide the appropriate accommodation to 31 appellant retirees/oustees, they shall continue to possess the accommodations which are in their respective possession on this date. 13. We do not find any merit in the argument that directions in J.L. Koul were not under Article 142 of the Constitution of India. This Court accepted the Rehabilitation Scheme produced on affidavit by the Chief Secretary of the State and thereafter expressed a pious hope. This Court did not decide any question of law or fact but merely expressed a compassionate view to alleviate the difficulties being faced by Kashmiri Migrants. The Rehabilitation Package approved by this Court itself contemplated that transit accommodations were being constructed at three sites but if such transit accommodation was not available, Rupees One Lakh per family towards rental and incidental expenses would be given to those who may not be accommodated in transit accommodation. Thus, even if they have not been given alternate accommodation, the Scheme approved by this Court contemplates cash compensation towards rental and incidental expenses. The compassion could not be extended in perpetuity and has to end some day or the other. Therefore, seeking parity with 31 retirees who were granted benefit in J.L. Koul is not tenable. The applicants are occupying the government accommodation at the cost of other Government servants who are waiting in queue for allotment of a government accommodation to discharge their official duties. The compassion shown to Kashmiri Migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively. The Government accommodation is meant for serving officers and cannot be taken as a recourse to stay in Government accommodation for the life time of the Government servants or his/her spouse. 14. The Office Memorandum issued on 28.3.2017 was in terms of the directions of the High Court of Delhi. Such order of High Court has not been approved by this Court vide order dated 5.8.2021. Therefore, the entire basis of issuance of Office Memorandum falls flat as the very foundation of such Scheme stands knocked down. 15. We find that the Office Memorandum allowing government accommodation to the retired Government employees who are Kashmiri Migrants cannot meet the touchstone of Article 14 of the Constitution of India. The Government houses/flats are meant for serving Government employees. Post retirement, the government employees including Kashmiri Migrants are granted pensionary benefits including monthly pension. The classification made in favour of Government employees who were Kashmiri Migrants stands on the same footing as that of other Government employees or public figures. There cannot be any justification on the basis of social or economic criteria to allow the Kashmiri Migrants to stay in Government accommodation for indefinite long period. 16. To say that they would return to the Valley when the situation will improve is an open-ended statement capable of being interpreted in different ways. The satisfaction of improvement of situation would be widely different by the erstwhile Government employees and the State. But in no case it can be countenanced that the former Government employee, may be a Kashmiri Migrant, is entitled to stay in a government accommodation for an indefinite period. Thus, we are unable to uphold the Office Memorandum and strike it down as being totally arbitrary and discriminatory. 17. In Para 2(ii) of the Scheme, Kashmiri Pandits were to be accommodated in Delhi for first five years starting from the date of their retirement and thereafter be shifted to National Capital Region. Thus, we find it reasonable if Kashmiri Migrants are allowed government accommodation for a period of three years from the date of retirement so as to make alternative arrangements within such period. If an alternative accommodation is not available for them at their instance, they are at liberty to move to the transit accommodation or to avail cash amount in lieu of transit accommodation. Thus, a government employee who is a Kashmiri Migrant would not be entitled to retain Government accommodation for a period exceeding three years, may be in Delhi or in the National Capital Region or for that matter anywhere in the country. 18. The three-years period can also be considered as cooling off period for the officers who were in active intelligence work so that they can resume normal life but the excuse of once working for intelligence agency is not a valid ground to occupy the Government accommodation for indefinite period.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. We do not find that any modification is required to the order dated 5.8.2021. In J.L. Koul, an affidavit of Chief Secretary of the State was filed disclosing that out of 54 appellant/Migrants, 23 had already vacated Government accommodation whereas 31 Migrants were still occupying the Government accommodation. The appellants were allotted residential accommodation at Jammu in the year 1989-1990 being Government servants. The writ petitions were filed before the High Court in the year 1995 which were decided by the learned Single Bench. Aggrieved against the directions issued by the learned Single Bench of the High Court, the occupants filed intra-court appeal before the High Court which was dismissed. Still further, appeal was filed before this Court.13. We do not find any merit in the argument that directions in J.L. Koul were not under Article 142 of the Constitution of India. This Court accepted the Rehabilitation Scheme produced on affidavit by the Chief Secretary of the State and thereafter expressed a pious hope. This Court did not decide any question of law or fact but merely expressed a compassionate view to alleviate the difficulties being faced by Kashmiri Migrants. The Rehabilitation Package approved by this Court itself contemplated that transit accommodations were being constructed at three sites but if such transit accommodation was not available, Rupees One Lakh per family towards rental and incidental expenses would be given to those who may not be accommodated in transit accommodation. Thus, even if they have not been given alternate accommodation, the Scheme approved by this Court contemplates cash compensation towards rental and incidental expenses. The compassion could not be extended in perpetuity and has to end some day or the other. Therefore, seeking parity with 31 retirees who were granted benefit in J.L. Koul is not tenable. The applicants are occupying the government accommodation at the cost of other Government servants who are waiting in queue for allotment of a government accommodation to discharge their official duties. The compassion shown to Kashmiri Migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively. The Government accommodation is meant for serving officers and cannot be taken as a recourse to stay in Government accommodation for the life time of the Government servants or his/her spouse.14. The Office Memorandum issued on 28.3.2017 was in terms of the directions of the High Court of Delhi. Such order of High Court has not been approved by this Court vide order dated 5.8.2021. Therefore, the entire basis of issuance of Office Memorandum falls flat as the very foundation of such Scheme stands knocked down.15. We find that the Office Memorandum allowing government accommodation to the retired Government employees who are Kashmiri Migrants cannot meet the touchstone of Article 14 of the Constitution of India. The Government houses/flats are meant for serving Government employees. Post retirement, the government employees including Kashmiri Migrants are granted pensionary benefits including monthly pension. The classification made in favour of Government employees who were Kashmiri Migrants stands on the same footing as that of other Government employees or public figures. There cannot be any justification on the basis of social or economic criteria to allow the Kashmiri Migrants to stay in Government accommodation for indefinite long period.16. To say that they would return to the Valley when the situation will improve is an open-ended statement capable of being interpreted in different ways. The satisfaction of improvement of situation would be widely different by the erstwhile Government employees and the State. But in no case it can be countenanced that the former Government employee, may be a Kashmiri Migrant, is entitled to stay in a government accommodation for an indefinite period. Thus, we are unable to uphold the Office Memorandum and strike it down as being totally arbitrary and discriminatory.17. In Para 2(ii) of the Scheme, Kashmiri Pandits were to be accommodated in Delhi for first five years starting from the date of their retirement and thereafter be shifted to National Capital Region. Thus, we find it reasonable if Kashmiri Migrants are allowed government accommodation for a period of three years from the date of retirement so as to make alternative arrangements within such period. If an alternative accommodation is not available for them at their instance, they are at liberty to move to the transit accommodation or to avail cash amount in lieu of transit accommodation. Thus, a government employee who is a Kashmiri Migrant would not be entitled to retain Government accommodation for a period exceeding three years, may be in Delhi or in the National Capital Region or for that matter anywhere in the country.18. The three-years period can also be considered as cooling off period for the officers who were in active intelligence work so that they can resume normal life but the excuse of once working for intelligence agency is not a valid ground to occupy the Government accommodation for indefinite period.