# In Jarnail Singh v. Secy., Ministry of

- **Citation:** (2006) 1 ILRA 555
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-14
- **Case number:** Civil Misc. Writ Petition No. 33258 of 1992
- **Bench:** Dr. B.S. Chauhan, Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jarnail-singh-v-secy-ministry-of-40867
- **Pages:** 5

## Headnote

Constitution of India, Art. 226-Penal
Rent- recovery from gratuity-petitioner
retained Railway Quarter-unauthorised
way-even on transfer from Gorakhpur to
Varanasi on 8.9.99-house rent allowance
drawn during this period-by notice dated
14.8.90
petitioner
was
required
to
vacate
the
premises-denial
by
petitioners on the ground that after
reposting at Gorakhpur-allotment stored
in his faour-No statutory Rule, executive
instruction or G.O.-placed by which penal
rent
not
chargeable-recovery-held
proper-dispite of notice neither vacated
the premises nor, nor refused the draw
the H.R.A. for 12 months-not entitled to
seek eqvaitable-discretionary relief.

Held: Para 8 & 9

In Jarnail Singh Vs. Secy., Ministry of
Home Affairs, (1993) 1 SCC 47, wherein
interpreting the provisions of the Central
Civil Services (Pension) Rules, 1972, it
was held that definition of "pension"
included gratuity under Rule 3. Rule 9
conferred on the President right to
withhold or withdraw pension in certain
circumstances. The order was passed
against
the
employee
withholding
pension and the entire amount of deathcum-retirement
gratuity
otherwise
admissible to him. The direction was
given on serious irregularities found to
have been committed by him. The Apex
Court held that the power to withhold
gratuity was conferred on the President
under the relevant rules and hence, such
action could not be said to be illegal.
According to the Court, there could be
adjustment of government dues against
the amount of death-cum-retirement
gratuity payable to government servant.

In Wazir Chand Vs. Union of India & Ors.
(2001) 6 SCC 596, the Apex Court held
that unauthorised occupancy of the
government quarters by an employee
amounts to misconduct, therefore, the
employee who retains the residential
accommodation, is liable to pay the
penal rent in accordance with the rules,
and there can be no illegality in those
dues being adjusted against the deathcum-retiral dues of the employee.
Case law discussed:
AIR 1985 SC-356
(1994) 6 SCC-589
AIR 2001 CSC-2433
(1993) 1 SCC-47
556 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

## Text

1 All] Uma Shanker Mishra V. The General Manager, N.E.R., Gorakhpur and others
555
but in no case it can be in a reverse gear.
Interference and variance by a lower court
in a final judgment given on merits by a
higher court, in law, cannot be corrected.

9. For the reasons recorded above,
this Court is not satisfied that the courts
below in rejecting petitioner's application
have committed any error calling for any
interference in exercise of jurisdiction
under Article 226 of the Constitution.

10. Writ petition accordingly fails
and is dismissed.
 Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 33258 of 1992

Uma Shanker Mishra

...Petitioner
Versus
The General Manager, N.E.R. Gorakhpur
and others

 ...Respondents

Counsel for the Petitioner:
Sri I.R. Singh
Sri Siddharth Shukla
Sri Alok Dwivedi
Sri J.P. Pandey

Counsel for the Respondents:
Sri Lal Ji Sinha

Constitution of India, Art. 226-Penal
Rent- recovery from gratuity-petitioner
retained Railway Quarter-unauthorised
way-even on transfer from Gorakhpur to
Varanasi on 8.9.99-house rent allowance
drawn during this period-by notice dated
14.8.90
petitioner
was
required
to
vacate
the
premises-denial
by
petitioners on the ground that after
reposting at Gorakhpur-allotment stored
in his faour-No statutory Rule, executive
instruction or G.O.-placed by which penal
rent
not
chargeable-recovery-held
proper-dispite of notice neither vacated
the premises nor, nor refused the draw
the H.R.A. for 12 months-not entitled to
seek eqvaitable-discretionary relief.

Held: Para 8 & 9

In Jarnail Singh Vs. Secy., Ministry of
Home Affairs, (1993) 1 SCC 47, wherein
interpreting the provisions of the Central
Civil Services (Pension) Rules, 1972, it
was held that definition of "pension"
included gratuity under Rule 3. Rule 9
conferred on the President right to
withhold or withdraw pension in certain
circumstances. The order was passed
against
the
employee
withholding
pension and the entire amount of deathcum-retirement
gratuity
otherwise
admissible to him. The direction was
given on serious irregularities found to
have been committed by him. The Apex
Court held that the power to withhold
gratuity was conferred on the President
under the relevant rules and hence, such
action could not be said to be illegal.
According to the Court, there could be
adjustment of government dues against
the amount of death-cum-retirement
gratuity payable to government servant.

In Wazir Chand Vs. Union of India & Ors.
(2001) 6 SCC 596, the Apex Court held
that unauthorised occupancy of the
government quarters by an employee
amounts to misconduct, therefore, the
employee who retains the residential
accommodation, is liable to pay the
penal rent in accordance with the rules,
and there can be no illegality in those
dues being adjusted against the deathcum-retiral dues of the employee.
Case law discussed:
AIR 1985 SC-356
(1994) 6 SCC-589
AIR 2001 CSC-2433
(1993) 1 SCC-47
556 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for quashing the orders dated 14th
August, 1990 and 15.04.1992 for making
the recovery of penal rent in respect of
Quarter
No.
92-B,
Type-III,
Dehri
Railway Colony, Gorakhpur.

2. The facts and circumstances
giving rise to this case are that the
petitioner was posted as Divisional Public
Prosecutor,
R.P.F.,
North
Eastern
Railway, Varanasi Division. During his
posting at Gorakhpur, he was allotted the
aforesaid
Quarter
vide
order
dated
22.01.1983.
The
petitioner
was
transferred from Gorakhpur to Varanasi
vide order dated 08.09.1988. He joined
the services at Varanasi but he did not
vacate the said Quarter at Gorakhpur.
Petitioner after serving five years, was
transferred
back
to
Gorakhpur
28.05.1993. However, as the petitioner
did not vacate the accommodation at
Gorakhpur, during the period he was
posted at Varanasi, penal rent is being
recovered. During the pendency of the
writ petition, the petitioner stood retired
on 31.07.1996, however, his gratuity has
been withheld. Hence this petition.

3. Shri I.R. Singh, learned counsel
for the petitioner has submitted that the
question of withholding the gratuity does
not arise in such a case as the petitioner
was
not
allotted
any
residential
accommodation at Varanasi after being
transferred from Gorakhpur and as he had
again been transferred to Gorakhpur on
28.05.1993 and continued to reside in the
same
accommodation,
the
orders
impugned are liable to be quashed. More
so, the petitioner had already retired on
31.07.1996, therefore, withholding the
gratuity that too to a sum of Rs.1,35,850/-
has caused great injustice to him. Petition
deserves to be allowed.

4. On the other hand, Shri Lalji
Sinha, learned counsel for the respondents
has vehemently opposed the writ petition
contending that after being transferred
from
Gorakhpur
to
Varanasi,
the
petitioner had withdrawn the House Rent
allowance at the rate of Rs.450/- per
month throughout the year 1989 and
unauthorizedly
occupied
the
accommodation at Gorakhpur. He had
been served a notice in writing that the
penal rent shall be charged and had been
asked several times to vacate the same but
petitioner did not pay any heed. It is not a
case where this Court should exercise its
discretionary
equitable
jurisdiction.
Therefore, no interference is called for
and the petition is liable to be dismissed.

We
have
considered
the
rival
submissions made by learned counsel for
the parties and perused the record.

5. The issue involved herein is as to
whether the gratuity or other retiral
benefits of an employee can be withheld,
or deduction can be made from the same
in case of unauthorised occupation of
residential
accommodation
by
the
employee after transfer or retirement?

6. The issue involved herein is no
more res integra. The Courts have
considered the issue time and again.

7. In State of Kerala & Ors. Vs. M.
Padmanabhan Nair, AIR 1985 SC 356; R.
Kapoor
Vs.
Director
of
Inspection
(Painting and Publication) Income Tax &
Anr., (1994) 6 SCC 589; and Gorakhpur
University
Vs.
Dr.
Shitla
Prasad
1 All] Uma Shanker Mishra V. The General Manager, N.E.R., Gorakhpur and others
557
Nagendra, AIR 2001 SC 2433, the
Hon'ble Supreme Court had taken the
view that the pension or other retiral
benefit cannot be withheld or adjusted or
appropriated for the satisfaction of any
other dues outstanding against the retired
employee.

8. In Jarnail Singh Vs. Secy.,
Ministry of Home Affairs, (1993) 1 SCC
47, wherein interpreting the provisions of
the Central Civil Services (Pension)
Rules, 1972, it was held that definition of
"pension" included gratuity under Rule 3.
Rule 9 conferred on the President right to
withhold or withdraw pension in certain
circumstances. The order was passed
against the employee withholding pension
and the entire amount of death-cumretirement gratuity otherwise admissible
to him. The direction was given on
serious irregularities found to have been
committed by him. The Apex Court held
that the power to withhold gratuity was
conferred on the President under the
relevant rules and hence, such action
could not be said to be illegal. According
to the Court, there could be adjustment of
government dues against the amount of
death-cum-retirement gratuity payable to
government servant.

9. In Wazir Chand Vs. Union of
India & Ors. (2001) 6 SCC 596, the Apex
Court held that unauthorised occupancy
of the government quarters by an
employee
amounts
to
misconduct,
therefore, the employee who retains the
residential accommodation, is liable to
pay the penal rent in accordance with the
rules, and there can be no illegality in
those dues being adjusted against the
death-cum-retiral dues of the employee.

10. In Secretary, ONGC Ltd. & Anr.
Vs. V.U. Warrier, (2005) 5 SCC 245. the
facts involved had been similar to the case
in hand. The employee was allotted a
Quarter and after retirement, he did not
vacate the same and continued to reside.
His request for further retention was
rejected with a notice that he was liable to
pay the penal rent. The amount of penal
rent was deducted from the gratuity
payable to the said employee. The
employee challenged the same on the
ground that such deduction was not
permissible
from
the
gratuity.
The
Hon'ble Apex Court repelled the said
submission of the employee and held that
the said deduction can be made from the
gratuity payable to the said employee.

11. While deciding the said case, the
Hon'ble Supreme Court has taken into
consideration its earlier judgments and
held that if rules so permit, such
adjustment is permissible. More so, the
Court must examine the facts of each case
and in case it is found that the employee
was
at
fault
and
there
is
no
unreasonableness or arbitrariness on the
part of the employer, the Court should not
interfere as the writ is a discretionary
relief.

12. The question of paying the penal
rent by the employee was also considered
by the Hon'ble Supreme Court in Grid
Corporation of Orissa Vs. Rasananda Das,
2003 AIR SCW 5390, holding that an
employee is bound to pay the rent/penal
rent in accordance with the Rules
applicable
for
overstaying
in
the
accommodation after transfer/retirement.
Thus, the petitioner cannot take the plea
that he is not bound to pay the penal rent.
558 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
13. Writ jurisdiction is discretionary.
Writ is not issued merely because it is
lawful to do so. The purpose of the writ
Court is not only to protect a person from
being subjected for violation of law but
also to advance justice and not to thwart
it. The Constitution does not place any
fetter on the power of the extraordinary
jurisdiction but leaves it to the discretion
of the Court. However, being the relief
equitable and discretionary, the Court has
to balance competing interest, keeping in
mind that interest of justice and public
interest
can
coalesce
in
certain
circumstances. Court should not exercise
such powers unless substantial injustice
has ensued or is likely to ensue. Petition
can be entertained only after being fully
satisfied about the factual statements and
not in a casual and cavalier manner. (Vide
G. Veerappa Pillai Vs. Raman and Raman
Ltd., AIR 1952 SC 192; Sanghram Singh
Vs. Electron Tribunal, Kotah & Anr., AIR
1955 SC 425; Champalal Binani Vs. The
Commissioner
of
Income-tax,
West
Bengal & Ors., AIR 1970 SC 645;
Ramniklal N. Bhutta & Anr. Vs. State of
Maharastra & Ors., (1997) 1 SCC 134;
Chimajirao Kanhojirao Shrike & Anr. Vs.
Oriental Fire and General Insurance Co.
Ltd., AIR 2000 SC 2532; Shama Prashant
Raje Vs. Ganpatrao & Ors., AIR 2000
SC 3094; LIC of India Vs. Asha Goel,
AIR 2001 SC 549; Roshan Deen Vs.
Preeti Lal, AIR 2002 SC 33; S.D.S.
Shipping Pvt. Ltd. Vs. Jay Container
Services Co. Pvt. Ltd. & Ors., AIR 2003
SC 2186; and Chandra Singh Vs. State of
Rajasthan & Anr., AIR 2003 SC 2889.

14. In view of the above, law can be
summarised on this issue that there is no
prohibition of adjusting or deducting the
penal rent from the retiral dues, including
gratuity, if the rule so permits, and the
employee has unauthorisedly occupied the
accommodation, however, there should
not be arbitrariness or unreasonableness
on the part of the employer. In case there
is an acquiescence of the employer tactitly
and in case there has been precedent taken
by the employer asking the employee to
vacate the accommodation or a notice that
he would be liable to pay the penal rent,
even if the rule does not permit such
deduction, adjustment or recovery, the
writ Court can refuse granting any
indulgence whatsoever, for the reason that
writ should be issued only where injustice
is ensued, otherwise not. There may be a
case where the employee after transfer or
retirement has requested the employer for
permission to retain the accommodation
and when granting such a permission, the
rent is being accepted, employee cannot
be
held
responsible
for
such
a
misconduct.
No
rule
of
universal
application can be formulated. The Court
is required to examine the facts of each
case and consider the same in the light of
the statutory rules applicable therein.

15. The case in hand is required to
be examined in the light of the aforesaid
settled legal proposition.

16. It is evident from the records,
particularly the counter affidavit to the
amendment application filed on behalf of
respondents no. 1 to 3, that after the
petitioner was transferred from Gorakhpur
to Varanasi on 08.09.1988, he continued
to draw the House Rent Allowance from
January, 1989 to December, 1989 at the
rate of Rs.550/- per month, though he had
unauthorizedly
occupied
the
railway
Quarter at Gorakhpur. He had been asked
vide letter dated 14.08.1990 to vacate the
said premises failing which necessary
action would be initiated against him.
1 All] Vaibhav Singh V. The State of U.P. and others
559
Petitioner replied the same vide letter
dated
15.01.1991
that
no
penal
rent/damages could be charged from him
as the allotment of the said Quarter stood
in his favour. After being re-transferred
from
Varanasi
to
Gorakhpur,
the
petitioner did not apply for allotment of
the said Quarter and continued to enjoy
the possession.

17. The ratio of law laid down by
the Hon'ble Apex Court in the aforesaid
judgment, i.e. Secretary, ONGC Ltd.
(supra) is fully attracted in the facts of the
present case.

18. No Statutory Rule, Executive
Instructions,
Government
Orders
or
Circular has been placed before us
showing that the petitioner could retain
the accommodation in Gorakhpur after
being transferred to Varanasi in spite of
the fact that the respondents had given
him the notice to vacate the same and
intimated that the penal rent shall be
chargeable from him. The petitioner did
not consider it proper to vacate the same.
The plea raised by the learned counsel for
the petitioner that for making recovery of
the penal rent, gratuity cannot be withheld
is not tenable in view of the judgment of
the Hon'ble Supreme Court, referred to
hereinabove.

19. As the petitioner did not vacate
the accommodation in spite of notice and
had drawn the HRA for complete 12
months, even after being transferred from
Gorakhpur to Varanasi, he is not entitled
to seek any equitable and discretionary
relief. Petition does not represent the
special
features,
warranting
any
interference in limited scope of judicial
review.

The Petition is devoid of any merit
and is accordingly dismissed.
Petition dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2005

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 52 Of 2003

Vaibhav Singh

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Avanish Mishra

Counsel for the Respondents:
S.C.

U.P.
Recruitment
of
Dependent
of
Government Servant Dying in Harness
Rules
1974-Compassionate
appointment-father of petitioner died in
harness on 19.11.94 working as subInspector
in
civil
Police-on
28.2.95
mother of the petitioner applied for
compassionate
appointment
as
the
petitioners was 16 years old-in the mean
time mother
also expired-hence
on
25.8.99
petitioner
applied
for
compassionate appointment-rejection on
ground the petitioner is below than 21
years-admittedly
on
the
date
of
application petitioner was more than 18
years-the date on which claim rejectedpetitioner had already attained 21 years
age-held-rejection illegal.

Held: Para 7

The
only
ground
for
refusing
appointment as Sub Inspector is that the
petitioner was less than 21 years of age
but it is apparent that he was in fact
more than 18 years of age when he
applied for compassionate appointment.
In any event, on the date when the claim