# Rakesh Kumar v. Principal, Government Inter College, Prayagraj & Ors

- **Citation:** (2020) 1 ILRA 1801
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-28
- **Case number:** Writ-A No. 18253 of 2019
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-v-principal-government-inter-college-prayagraj-ors-45064
- **Pages:** 6

## Headnote

C.S.C., Sri Girish Vishwakarma

A. Service matter-petitioner challenged
the
unauthorizedly
over
staying
of
employees/officers
in
a
government
accommodation
even
after
their
retirement or transfer- grievance of the
petitioner is that more than one year has
passed and yet the respondent no. 5 has
not
yet
vacated
the
residential
accommodation of the institution allotted
to the petitioner due to which the
petitioner is suffering-no action taken by
the
state
government
against
such
authorities-directions
given
in
accordance with the judgement of Apex
Court in this regard.

Writ Petition disposed of. (E-6)

List of cases cited: -

## Text

1802 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR 1801

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2019

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 18253 of 2019

Rakesh Kumar ...Petitioner
Versus
Principal,
Government
Inter
College,
Prayagraj & Ors. ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh, Sri Adarsh Singh

Counsel for the Respondents:
C.S.C., Sri Girish Vishwakarma

A. Service matter-petitioner challenged
the
unauthorizedly
over
staying
of
employees/officers
in
a
government
accommodation
even
after
their
retirement or transfer- grievance of the
petitioner is that more than one year has
passed and yet the respondent no. 5 has
not
yet
vacated
the
residential
accommodation of the institution allotted
to the petitioner due to which the
petitioner is suffering-no action taken by
the
state
government
against
such
authorities-directions
given
in
accordance with the judgement of Apex
Court in this regard.

Writ Petition disposed of. (E-6)

List of cases cited: -

1. Jag Pal Singh Bhatt Vs. St. of U. P. 2002(2) AWC 988

2. S.D. Bandi Vs. Divisional Traffic Officer,
Karnataka State Road Transport Corporation & Ors,
(2013) 12 SCC 631

3. Satish Chandra Yadav Vs. St. Of U.P. And 7
Ors. 2016 (2) ADJ 395
4. Union of India Vs. Vimal Bhai, (2014) 13 SCC
766 Para 5

5. Lok Prahari Vs. St. of U.P. (2016) 8 SCC 389
Paras41, 46

(Delivered by Hon'ble Surya Prakash
Kesarwani,J.)

1. Heard Sri Adarsh Singh, learned
counsel for the petitioner and Sri Girish
Vishwakarma, learned standing counsel
for the respondent nos. 1 to 4.

2. On 25.11.2019, this Court passed
the following order:-

"The petitioner is posted as
Assistant Teacher in the institution of
respondent no. 1. He has been allotted an
accommodation by the respondent no. 1 by
order dated 24.9.2018 which has not yet
been vacated by the earlier Assistant
Teacher, namely Sri Chhote Lal Yadav
who was promoted and transferred on
3.8.2018.

The grievance of the petitioner is
that more than one year has passed and
yet the respondent no. 5 has not yet
vacated the residential accommodation of
the institution allotted to the petitioner due
to which the petitioner is suffering.

In view of the facts briefly noted
above,
learned
standing
counsel
is
directed to obtain instructions from
respondent nos. 1, 2 & 3 who shall also
show cause that if the allotment order
dated 24.9.2019 is still operating in favour
of
the
petitioner,
then
why
the
accommodation has not been got vacated
from the respondent no. 5 and what action
has been taken against the respondent no.
5 due to alleged illegal occupation of the
Government accommodation.

Put up on 28.11.2019 in the
additional cause list for further hearing."
1 All. Rakesh Kumar Vs. Principal Government Inter College, Prayagraj & Ors.
1803

3. Today, learned standing counsel
has produced instruction dated 27.11.2019,
given by the respondent no.1 in which it is
mentioned that after the order of this Court
dated 25.11.2019, the premises has been
got vacated from the respondent no.5 and
it has been given to the petitioner which
was allotted to him by order dated
24.09.2018. The aforesaid instruction is
kept on record.

4. Perusal of this instruction prima
facie shows that the respondent no.5 is
indulged
in
not only
illegally
and
unauthorisedly occupying the Government
accommodation but also indulged in
encroaching upon the Government land
and damaged boundary wall etc. which is
Government
property.
No
action
whatsoever has been taken by the
respondent authorities except that after this
court passed the above quoted order, the
payment of salary of the respondent no.5
was requested to be stopped. Such type of
instances are serious particularly when
there is inaction on the part of the
respondent authorities.

5. A Division Bench in Jag Pal
Singh Bhatt Vs. State of Uttar Pradesh
2002(2) AWC 988 has laid down the law
in the matter of a State Government
Employee that he cannot continue to
occupy the official accommodation since
he has been transferred from there.

6. Hon'ble Supreme Court in the case
of S.D. Bandi v. Divisional Traffic
Officer,
Karnataka
State
Road
Transport Corporation and others,
(2013) 12 SCC 631, has laid down the law
that an employee should not overstay after
his retirement or transfer. The Court has
noticed that the States of Uttar Pradesh
and Orissa have amended Section 441 of
the Penal Code, 1860 (in short "IPC"). The
Supreme Court has observed that the
Government in two States are in a position
to file criminal proceedings in the case of
unauthorised occupation of government
accommodation. Section 441 as amended
in Uttar Pradesh as quoted in S.D. Bandi
(supra) reads as under:

'441. ... or, having entered into
or upon such property, whether before or
after the coming into force of the Criminal
Laws (U.P. Amendment) Act, 1961, with
the intention of taking unauthorised
possession or making unauthorised use of
such property fails to withdraw from such
property or its possession or use, when
called upon to do so by that another
person by notice in writing, duly served
upon him, by the date specified in the
notice, is said to commit "criminal
trespass".' (Uttar Pradesh).

7. After considering the response
from all the States, Hon'ble Supreme Court
has made certain suggestions in Para-33 of
the S.D. Bandi's case (supra), as under:-

"Suggestions:

33. The following suggestions
would precisely address the grievances of
the Centre and the State governments in
regard to the unauthorized occupants:

33.1
As
a
precautionary
measure, a notice should be sent to the
allottee/officer/employee concerned under
Section 4 of the PP Act three months prior
to the date of his/her retirement giving
advance intimation to vacate the premises.

33.2 The Department concerned
from where the government servant is
going to retire must be made liable for
fulfilling the above-mentioned formalities
as well as follow up actions so that rest of
1804 INDIAN LAW REPORTS ALLAHABAD SERIES
the provisions of the Act can be effectively
utilized.

33.3 The principles of natural
justice have to be followed while serving
the notice.

33.4
After
following
the
procedure as mentioned in SR 317-B-
11(2) and 317-B-22 proviso 1 and 2,
within 7 working days, send a show cause
notice to the person concerned in view of
the advance intimation sent three months
before the retirement.

33.5 Date of appearance before
the Estate Officer or for personal hearing
as mentioned in the Act after show cause
notice should not be more than 7 working
days.

33.6 Order of eviction should be
passed
as
expeditiously
as
possible
preferably within a period of 15 days.

33.7 If, as per the Estate Officer,
the occupant's case is genuine in terms of
Section 5 of the Act then, in the first
instance, an extension of not more than 30
days should be granted.

33.8
The
responsibility
for
issuance of the genuineness certificate
should be on the Department concerned
from where the government servant has
retired for the occupation of the premises
for next 15 days and further. Giving
additional responsibility to the department
concerned will help in speedy vacation of
such premises. Baseless or frivolous
applications for extensions have to be
rejected within seven days.

33.9 If as per the Estate Officer
the occupant's case is not genuine, not
more than 15 days' time should be granted
and thereafter, reasonable force as per
Section 5(2) of the Act may be used.

33.10 There must be a time
frame within how much time the Estate
Officer has to decide about the quantum of
rent to be paid.

33.11 The same procedure must
be followed for damages.

33.12
The
arrears/damages
should be collected as arrears of land
revenue as mentioned in Section 14 of the
Act.

33.13 There must be a provision
for compound interest, instead of simple
interest as per Section 7.

33.14 To make it more stringent,
there must be some provision for stoppage
or reduction in the monthly pension till the
date of vacation of the premises.

33.15 Under Section 9 (2), an
appeal shall lie from an order of eviction
and of rent/damages within 12 days from
the day of publication or on which the
order is communicated respectively.

33.16
Under
Section
9(4),
disposal of the appeals must be preferably
within a period of 30 days in order to
eliminate unnecessary delay in disposal of
such cases.

33.17 The liberty of the appellate
officer to condone the delay in filing the
appeal under Section 9 of the Act should
be exercised very reluctantly and it should
be an exceptional practice and not a
general rule.

33.18
Since
allotment
of
government accommodation is a privilege
given to the Ministers and Members of
Parliament, the matter of unauthorized
retention should be intimated to the
Speaker/Chairman of the House and
action should be initiated by the House
Committee for the breach of the privileges
which a Member/Minister enjoys and the
appropriate Committee should recommend
to the Speaker/Chairman for taking
appropriate action/eviction within a time
bound period.

33.19The Judges of any forum
shall vacate the official residence within a
period of one month from the date of
1 All. Rakesh Kumar Vs. Principal Government Inter College, Prayagraj & Ors.
1805
superannuation/retirement. However, after
recording sufficient reason(s), the time
may be extended by another one month.

33.20 Henceforth, no memorials
should be allowed in future in any
Government
houses
earmarked
for
residential accommodation. "

8. Hon'ble Supreme Court further
held that the same procedure must be
followed
for
damages
also;
the
arrears/damages should be collected as
arrears of land revenue; to make it more
stringent, there must be some provision for
stoppage or reduction in the monthly
pension till the date of vacation of the
premises.

9. The State of Uttar Pradesh has
informed the Supreme Court that in the
State of Uttar Pradesh, there is already a
provision in respect of arrears of rent and
damages and the rules enable the State to
recover the same as arrears of land
revenue. The Supreme Court was also
informed by the State of Uttar Pradesh that
the stringent provision viz. Section 11 of
the U.P. Public Premises (Eviction of
Unauthorised Occupants) Act, 1972 is in
force.

10. The aforesaid judgment of
Hon'ble Supreme Court in S.D. Bandi
(supra) has been followed by a Bench of
this Court in Satish Chandra Yadav Vs.
State Of U.P. And 7 Ors. 2016 (2) ADJ
395 and a direction has been issued as
under:-

"Therefore,
the
authority
concerned shall adopt an uniform policy
for granting extension to retain the
government
accommodation
beyond
prescribed limit. The State functionaries
would follow the law laid down by the
Supreme Court in the case of S.D. Bandi
(supra) in letter and spirit."

11. In Union of India vs. Vimal
Bhai, (2014) 13 SCC 766 (Para-5)
Hon'ble Supreme Court directed to get
the Government accommodation vacated
from
those
who
are
unauthorisedly
occupying the same and action must be
taken strictly in accordance with para
33 of the judgment in S.D. Bandi case
(supra).

12. In Lok Prahari vs. State of U.P.
(2016) 8 SCC 389 (Paras-41, 46), Hon'ble
Supreme Court held as under:

"41. This Court, in the case of
"SD Bandi v. Karnataka SRTC, (2013) 12
SCC 631, in relation to occupation of
government bungalows, beyond the period
for which the same were allotted, observed
that (SCC p.649, para 34)

"34. It is unfortunate that the
employees, officers, representatives of
people
and
other
high
dignitaries
continue to stay in the residential
accommodation
provided
by
the
Government of India though they are no
longer entitled to such accommodation.
Many of such persons continue to occupy
residential
accommodation
commensurate with the office(s) held by
them earlier and which are beyond their
present entitlement. The unauthorized
occupants must recollect that rights and
duties are correlative as the rights of one
person entail the duties of another person
similarly the duty of one person entails
the rights of another person. Observing
this, the unauthorized occupants must
appreciate that their act of overstaying in
the premise infringes the right of
another. No law or directions can entirely
control this act of disobedience but for the
1806 INDIAN LAW REPORTS ALLAHABAD SERIES
self realization among the unauthorized
occupants".

46. So far as allotment of
bungalow to private trusts or societies are
concerned, it is not in dispute that all
those bungalows were allotted to the
societies/trusts/organizations at the time
when there was no provision with regard
to allotment of government bungalows to
them and therefore, in our opinion, the
said allotment cannot be held to be
justified. One should remember here that
public property cannot be disposed of in
favour of any one without adequate
consideration. Allotment of government
property to someone without adequate
market rent, in absence of any special
statutory provision, would also be bad in
law because the State has no right to
fritter away government property in favour
of private persons or bodies without
adequate consideration and therefore, all
such allotments, which have been made in
absence of any statutory provision cannot
be upheld. If any allotment was not made
in accordance with a statutory provision at
the relevant time, it must be discontinued
and must be treated as cancelled and the
State shall take possession of such
premises as soon as possible and at the
same time, the State should also recover
appropriate rent in respect of such
premises which had been allotted without
any statutory provision." (Emphasis
supplied by me)

13. From the facts as briefly noted
above, it appears that despite a clear
direction of Hon'ble Supreme Court and of
this Court and despite the provisions of
Section 11 of the U.P. Public Premises
(Eviction of Unauthorised Occupants) Act,
1972, the State authorities have neither
adopted a uniform policy nor have made
any effort to enforce the provisions of
Section 11 of the Act 1972 nor enforced
the clear direction given by this Court in
the case of Satish Chandra Yadav
(supra) and by Hon'ble Supreme Court in
the case of S.D. Bandi (supra) which has
binding force under Article 141 of the
Constitution of India.

14. In the present case, since the
accommodation has now been got vacated
from the respondent No.5 and the allottee
has been given possession of the allotted
Government Accommodation, therefore,
this writ petition is disposed of and the
following directions are issued which shall
be strictly complied with by the State
Government:-

(i) The State Government shall
ensure compliance of the directions of
Hon'ble Supreme Court in the case of S.D.
Bandi (supra) and take immediate action
against all such employees/ officers who
are unauthorisedly over staying in a
Government Accommodation after their
retirement or transfer.

(ii) Necessary action shall be
taken by competent authorities in the State
of
Uttar
Pradesh
against
such
Employees/Officers
who
are
unauthorisidely
over
staying
in
Government allotted accommodation after
their retirement or transfer (as suggested
by Hon'ble Supreme Court in the case of
S.D. Bandi's case and directed to be
implemented in Vimal Bhai case).

(iii) The State Government shall
frame and adopt a uniform policy within
two months from today, if not framed so
far, for granting extension to retain the
Government
accommodation
beyond
prescribed limit and shall strictly adhere to
it.

(iv) The State Government shall
call for information from all the District
1 All. Rakesh Kumar Vs. Principal Government Inter College, Prayagraj & Ors.
1807
Authorities in the State of Uttar Pradesh
within two months from today about the
Officers
and
Employees
who
are
unauthorisedly over staying or retaining
the Government accommodation beyond
prescribed limit, after their retirement or
transfer. Within next one month, the State
Government shall ensure that all such
Government
accommodation
being
illegally or unauthorisedly occupied by
retired/transferred Employees and Officers
are vacated immediately. In the event, any
inaction is shown by any authority, the
State
Government
shall
ensure
that
necessary action is also taken against such
authorities.

15. With the aforesaid directions this
writ petition is disposed of.

16. Let a copy of this judgment be
sent by the Registrar General of this Court
to the Chief Secretary, Government of
Uttar Pradesh for necessary action and
compliance.
----------
(2020)1ILR 1806
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2019

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 18336 of 2019

Dr. Vijay Kumar Srivastava & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Anoop Kumar, Sri Vivek Saran

Counsel for the Respondents:
C.S.C., Sri Bhupendra Nath Singh
A.
Service
-
Pension
-
Qualifying
period/service - Uttar Pradesh Higher
Education
Services
Commission
Act,
1980: Section 12, 13, 31, 31-E;

Rule of Estoppel - A person cannot say at
one time that a transaction is valid to
obtain some advantage and at the same
time say that it is void for the purpose of
securing
some
other
advantage
-
Petitioners' appointment is based on doctrine of
election which is the Rule of estoppel or a Rule
of equity. They cannot be permitted to "blow
hot and cold", "fast and loose" or "approbate
and reprobate". Petitioners have knowingly,
willfully
accepted
the
benefits
of
their
appointment by absorption under GOs dated
6.6.2014 and 2.5.2016 as an exception to the
normal rule of public employment and Ss 12
and 13 of the Act, 1980 resulting in a contract
of service. Therefore, they cannot question the
validity or binding effect of the aforesaid
Government Orders. (Para 21 to 30, 40(iii),
41(iv))

B. Rules of Absorption - It is settled law
that a person cannot challenge the very
source
i.e.
Statute,
Rules
or
the
Government Orders under which he was
appointed - The GO dated 6.6.2014 and
amended S. 31-E of the Act, 1980 is a one-time
measure for absorption. Absorption in public
employment is not a right but, an exception to
the normal rule and subject to conditions. Once
the petitioners have exercised the option for
their absorption in public employment, they
cannot say that condition no. 4 is arbitrary.
Past
service
as
part
time
teacher
on
honorarium prior to absorption cannot be
added in their length of service in the absence
of any constitutional or legal right. (Para 31 to
40, 41(ii), 41(v))

C. U.G.C. Regulation 2010: Clause 10.1(f)
- The said clause is applicable only to
adhoc and temporary appointees which fall
under a different class than the persons /
petitioners
who
were
engaged
by
the
management on honorarium basis per lecture
as permitted by GO dated 7.4.1998. These
engagements
were
made
without
recommendation
of
any
duly
constituted