Oral Judgment: (S.C. Dharmadhikari, J.)
1. By these Petitions under Article 226 of the Constitution of India the Petitioners before us have challenged a shift in the policy and which would deprive them of their residential accommodation presently in their possession. The essential argument is that such of the candidates and Army Officers like the Petitioners serving the Armed Forces and posted at a particular station were desirous of obtaining study leave. They wanted to go for higher studies while in service so as to better their career prospects and earn if possible some promotions in future.
2. With that in mind the writ Petitioner in Writ Petition No. 9134 of 2015 serving as a Lieutenant Colonel applied for study leave.
3. The Petitioner's case is that the present accommodation and as described in the Writ Petition has been in his possession since 28th September, 2013. The Petitioner's mother is suffering from multiple ailments. She also suffered a hip joint fracture and is bedridden. He has a son aged 7 years and studying in 3rd Standard in Army Public School, Kirkee, Pune which is located within 2 km of the present residential accommodation. The Petitioner had rendered meritorious service upon his commission in the Army on 10th December, 1994.
4. An application for grant of two years study leave was made on 18th August, 2014. That was favourably considered and the Petitioner was granted study leave commencing from 20th July, 2015 to 31st May, 2017. That permission is contained in a letter dated 16th February, 2015. The Petitioner is pursuing M. B. A. (Master in Business Administration) (Finance) at Department of Management Science in Pune.
5. The Military Secretary Branch vide orders dated 15th July, 2015 and 17th July, 2015 attached the Petitioner with station Head Quarters, Kirkee, Pune during the period of study leave. Thus, this is the same unit where the Petitioner was posted before the study leave. On 18th July, 2015, the Petitioner submitted an application to the 5th Respondent for retention of his present accommodation. It was mentioned that the present accommodation of the Petitioner is classified as alternate / temporary accommodation. The Petitioner relied upon a policy dated 21st October, 2011. However, the Petitioner's application was dealt with and replied in which a direction was issued to him to vacate the present accommodation within a period of 10 days and claim House Rent Allowance.
6. A representation was made on 19th August, 2015 in writing setting out as to how the Petitioner's higher study would benefit the organization. Since the Petitioner is not looking for his career prospects but also has the interest of organization in mind that it was requested that the benefit of the earlier policy should be extended to him.
7. Even this representation is rejected on 31st August, 2015. In the Writ Petition the Petitioner has stated that all earlier policies clearly entitled the officers to retain their accommodation during the period of study leave. Till recently, the Respondents were allowing officers to retain their accommodation. The officers who had proceeded on study leave in 2014 were permitted to retain their accommodation till 2016 despite a new policy coming into force. The new policy document is dated 30th January, 2015. However, the reliance by the Respondents on the new policy to deny the request of the Petitioner would mean that though the Petitioner was an in service employee or officer, applied for study leave which was duly sanctioned and everything transpired and took place prior to the issuance of the new policy dated 30th January, 2015 coming into force, yet, in his case the request has been unreasonably and unfairly denied.
8. It is on such contentions and further grounds in the Writ Petition that the Petitioner seeks a direction from this Court to quash and set aside the policy regulation dated 30th January, 2015 and the two communications, copies of which are Annexures-D and G to the Writ Petition.
9. An affidavit-in-reply has been filed by the Respondents after being duly served. The Station Staff Officer of the Station Head Quarters, Kirkee, Pune filed a common reply on behalf of all the Respondents. He has points out that the Petitioner was posted at Army base workshop as Electronic and Mechanical Engineer on 12th August, 2013. On 18th August, 2014 he applied for study leave which was sanctioned. By a letter issued by the D. G. M.T.-
Director General of Military Training, the Petitioner was permitted to avail study leave from 20th July, 2015 to 31st July, 2017. That was for pursuing the M. B. A. Finance course at the Department of Management Science (Pune). This course is under the affiliation of the Savitribai Phule University Pune (for short Pune University ). The affidavit explains that the Petitioner is entitled to the salary and other allowances as per the Army orders during his study leave. He was also attached to the Station Head Quarters at Kirkee for local administration and discipline. He was borne on supernumerary strength of 512 Army Base Workshop. The Petitioner was permitted to pursue this course in terms of letter dated 13th July, 2015. The study leave was sanctioned and granted bearing in mind the utility of the higher studies and qualifications obtained by the Petitioner. In other words, bearing in mind the interests of the Armed Forces and the Organization as a whole this sanction was granted. The Petitioner was aware that as per Appendix-B to the application for grant of study leave, he had to give an undertaking to vacate the present accommodation. While making this application for study leave the Petitioner has not annexed the undertakings / Appendix-B. He has suppressed this fact from this Court.
10. On 18th July, 2015, the Petitioner requested the Station Commander to permit him to retain the accommodation namely 27, Recreation Club Road, Kirkee, Pune- 411003 during the period of study leave, as per policy letter dated 21st October, 2011. However, he was informed that as per the decision in the meeting of 30th May, 2015 no alternate surplus accommodation was available for allotment to study leave officers. Due to waiting list for permanent accommodation, no alternate or temporary or separate family accommodation was available and as per the latest policy dated 30th January, 2015 the Petitioner had to vacate the quarters within 10 days and claim the House Rent Allowance. The Petitioner is therefore not entitled to the relief that he is claiming. It is stated that in terms of the policy and particularly paragraph 4 thereof, the Petitioner is not entitled to retention of the existing accommodation as of right.
11. In paragraph no.5 of this affidavit it is explained as to why on 30th January, 2015 a policy had to be outlined on the subject of regulation of entitlement of rent or accommodation to the officers proceeding on study leave. It is recorded therein that in earlier policies, implementation was not uniform which resulted in situation where the officers (especially the officers from field area) posted on duty were forced to be in waiting list for a long time for getting regular accommodation on House Rent reimbursement basis / House Rent Allowance basis whereas the officers on study leave continued to occupy the required accommodation. All the officers posted in a station are committed to the organization and as such are entitled to get accommodation. The officers who have proceeded on study leave cannot therefore claim a better or beneficial treatment. It has been therefore decided and to ensure uniformity that priority for residential accommodation would be given to those officers who are posted on duty in Station Head Quarters. Any Officer proceeding on study leave may apply for accommodation or for retention of existing accommodation in which he was staying but he would be accommodated in hired accommodation or alternate accommodation or on House Rent Reimbursement basis or can avail House Rent Allowance but would have to vacate the regular accommodation within ten days. This is to facilitate allotment of residential accommodations to on duty officers posted at the station or such of those who are in the waiting list. It is in these circumstances that the request of the Petitioner has been denied.
12. It is stated that on account of working and functioning of the Armed Forces retention of accommodation is not permissible. In all circumstances and more so when the officers proceed on study leave, they cannot place forward their family difficulties or children's education. It is such a policy and which is now devised and which is being interpreted is justified in this affidavit.
13. It is explained as to how the policies take care of the peculiarities of various stations. It is further explained that for the purpose of allotment of accommodation to the officers near to the place of work, Kirkee military station has been divided into five Zones. As per the standing procedures moving in or posting to station including field areas are given priority for allotment of accommodation. The next priority would be those who move to the field areas and they would be allotted alternate accommodation. The last priority is given to the officers who are required to move from one peace station to another peace station. The officers proceeding on study leave from peace station are to be treated as officers who are required to move from one peace station to another peace station as mentioned in paragraph 65 of the Special Army Order /10/S/1986 on the basis of date of receipt of application for study leave / date of commencement of study leave. It is stated that the officers who are posted to Kirkee station from outstation including field areas have to wait for allotment of accommodation due to shortage of accommodation and as per the procedure mentioned in the aforesaid standing orders allotment of accommodation is made to these officers. This is the real purpose and object and which is stated to be achieved by the current policies.
14. The Petitioner had during the pendency of this Writ Petition filed a Civil Application and has relied upon certain materials now obtained and presently in his possession. It is urged that the policy has been applied selectively. The Respondents have acted arbitrarily in as much as they are picking and choosing officers for favourable treatment. It is stated in this Civil Application that the Petitioner's entitlement is protected by ad-interim order passed by this Court and it was directed that he shall not be evicted nor called upon to vacate premises, yet, a show cause notice dated 6th September, 2016 was issued and after institution of this Writ Petition. The Petitioner / Applicant states that recently he has learned that several accommodations in Kirkee cantonment are lying vacant. The Petitioner has found out cases where officers who have proceeded on study leave like him and similarly situated have been either granted alternate accommodation or have been permitted to retain their existing accommodation. Therefore, there is a discriminatory invocation and application of the policies and evolved for grant of housing accommodation.
15. It is on these materials that we have heard this Petition and the other Petitions. The other Petitions, barring some factual differences, contain the same challenge. Some of the Petitions are filed by officers whose children are currently taking education and are due to appear for the 10th standard or 12th standard Board examination. They have in addition to the above grounds projected these difficulties.
16. We have heard Mr. Deshmukh, appearing on behalf of the Petitioners in each of these Petitions and Mr. Rajguru appearing on behalf of the Respondents.
17. Mr. Deshmukh would submit that the Petitioners applied for study leave based on certain policies enabling them to retain their existing accommodation. When their applications were filed the policy which was in force is dated 21st October, 2011. A copy of that is at page 37 of the paper book. The Petitioners' application was to be dealt with in terms of this policy. The policy which came into force after the Petitioners' application, cannot be applied. That would amount to retrospective application of a new policy to an old case. That is not permissible in law.
18. Mr. Deshmukh projected the hardship that would be caused if the new policy is applied. He brought to our notice page 38 of the paper book in Writ Petition No.9134 of 2015 and more particularly Clauses (a), (c) (i) to submit that each of the Petitioners will have to vacate the existing accommodation. They would have to move to some alternate accommodation. However, if the Petitioners can be accommodated in the present accommodation or any Government hired accommodation, then, that option be made available. Mr. Deshmukh submits that if the present policy, copy of which is at pages 34 / 35 of the paper book and particularly clause (4) thereof is applied, then, the Respondents are foisting a condition on all Petitioners of payment of House Rent Allowance in lieu of retention of the existing accommodation. Mr. Deshmukh projects certain practical difficulties and faced by the Petitioners. He would submit that the rate at which the House Rent Allowance is payable does not take care of the prevailing property prices and particularly residential accommodation in the city of Pune. He submits that the property prices are enormous and it is not possible to arrange for a decent residential accommodation for the family at a meager House Rent Allowance. The Petitioners had given several options and were ready to move into the vacant accommodation or such of those accommodations or premises which are allotted to lower cadre officers. However, none of these options have been considered. Now, some of the Petitioners are in a peculiar situation and they would have to move out of their existing accommodation in the midst of a academic session. That will cause inconvenience to the family particularly to the school going children. Therefore and alternatively, this Court should direct the Respondents to take a sympathetic view and allow the Petitioners retention of the existing accommodation till the end of the study leave.
19. Mr. Deshmukh has relied upon an order passed by the High Court at New Delhi in similar cases. He submits that even when the Respondents projected their difficulties the said High court duly noting them granted adequate and reasonable time to the aggrieved Petitioners before that High Court to vacate the premises in their possession. There are some orders where the Petitioners were permitted to shift to some other accommodations available from the pool. Mr. Deshmukh would submit that such a course can safely be adopted in the facts and circumstances of the present case.
20. On the other hand, Mr. Rajguru appearing for the Respondents would submit that the Petitioners do not possess any vested right and of retention of the existing accommodation. The Petitioners are part of Armed forces. In Armed forces bearing in mind the priorities and requirements at a particular station the facility of a residential accommodation is extended. Eventually, this is a facility and depending upon the availability of residential accommodation, the priority in matters of allotment of such accommodation, decisions are taken. A broad policy is evolved but based on that policy an absolute right cannot be claimed by any officers in the Armed forces. He cannot insist on a residential accommodation being made available. Several options have been provided and in lieu of allotment of residential accommodation. These options were available in the earlier policy and are also provided in the new policy. However, the changes and shift in the policy had to take place on account of the circumstances presently prevailing. The experience of the administration is that those posted for duties at stations like Pune have to wait for allotment of residential accommodation. They must get priority over and above those who are not on duty but on leave such as study leave. Their families are not inconvenienced and in terms of the present policy or earlier one, several options were given. It is not as if the difficulties and hardships of such officers are not taken into consideration. They are provided with House Rent Allowance. However, no directions can be issued to adopt a particular policy or not to implement the changed policies. Eventually, all these are policy matters and it is better that they are left to the Armed forces. The administration is aware of the needs of its officers. It has to keep the interest of the organization as a whole in the forefront. Ultimately, individual difficulties and grievances can be redressed at the level of the administration but in the absence of any vested or absolute right, this Court should not interfere in its writ jurisdiction in such matters. He would therefore submit that the Writ Petition be dismissed.
21. With the assistance of the counsel appearing for the parties we have perused the memo of each of these Petitions together with their Annexures. We have perused the affidavit filed in reply.
22. The Petitioners have relied upon certain policies. It is stated that these are on the subject of regulation of entitlement and grant of accommodation to officers on study leave.
23. In response to amendment to the Inter Service Quartering Committee ( ISQC ) Rules, Banglore Station. The Quartermaster General's Branch Integrated Head Quarter of Ministry of Defense (Army), New Delhi which is the authority for policy formation considered various earlier documents, paragraphs of Army Orders, Standing Orders including SAO 10/S/86. It was experienced that these are based on feed back from the environment in the light of existing rules/ policies and legal / audit requirements. Specific provisions are made to protect existing occupants while applying the rule / policy changes and hence these are de-facto prospective and not retrospective in nature.
24. However, the Army Head Quarters policy on entitlement and regulation of accommodation to officers on study leave was also evolved upon feedback and obtained from time to time. As on 21st October 2011 the underlying organizational interest in grant of study leave is cadre management, to create vacancies for promotion besides lateral progression of officers by improving their skills. In order to promote these interests, it has been incentivised by entitlement of accommodation at last duty station / study leave station.
25. Mr Deshmukh would read paragraphs 3 and 4 of this policy and particularly clauses (a) and (c). However, we would prefer to read the policy document as a whole. For our convenience we reproduce the relevant clauses of this policy.
Paragraph 4 of this policy summarizes the position as on 21st October, 2011. That reads as under:-
3. AHQ policy on entitlement and regulation of accommodation to officers on study leave was evolved upon feedback from MT Dte/MS Branch and modified from time to time as per environmental needs. As it stands today, the underlying organization interest in grant of study leave is cadre management to create vacancies for promotion besides lateral progression of officers by improving their skill set. In order to promote these interests, it has been incentivised by entitlement of accommodation at last duty station/ study leave station.
4. This provision has been given Govt sanction vide para 47, 48, and 83 of SAQ 10/S/86 and GoI, MoD letter No.10(55)/98/D (QandC) dated 11th February 2008 besides administrative provisions vide Para 15 of AHQ DGMT (MT-9) letter No.A/60010/SL/93/GS/MT-9 dated 25 September 1992 and AHQ letter No.62094/Q3(B-i) dated 22nd December 80 ibid No. dated 3rd February 1988 and ibid No. dated 27th April 1999; 62094/Policy (Qtr) dated 23 June 2004 and ibid No. dated 28 April 2005. The stated position on the matter is summarized below:
(a) Entitlement of accommodation to an officer on study leave is the same as that granted to a regular officer on duty.
(b) Permission to retain accommodation at Last Duty Station is to be granted by Station Commander upon specific application for the same by the Officer upon proceding on study leave.
Last duty Station for the purpose of study leave is the station where the officer served last/Selected Place of Residence (SPR)/Station where he is retaining md. Accommodation including FAFA. Where the Last Duty Station (LDS)/Study Leave Station (SLS) is Non Mil Station (NMS), the nearest Station Head Quarter in whose jurisdiction it falls shall act as LDS/SLS respectively for the purpose of regulating grant of accommodation.
(c) Provision of accommodation at Last Duty Station (LDS) :
(i) Where study leave station (SLS) and LDS are the same, station commander should, as far as feasible, permit retention of same accommodation provided the accommodation is not Reserved Accommodation vide Para 103 of SAO 10/s/89 on the date of commencement of study leave. Where the officer is occupying reserved accommodation, it shall be vacated within 10 days of commencement of study leave by shifting the officer to alternate accommodation of entitled class.
(ii) Should it not be feasible to permit retention of same accommodation due to administrative reasons, the Station Commander is expected to allot alternate accommodation of entitled scale. Administrative reasons may include Zoning of accommodation in Zone Pools, Sanctioned repairs as per approved repair program or Force accretions at the station on long term plan basis or any other operational / administrative reason duly approved by HQ Comander. In any case, the completion of current academic session shall be permitted before shifting the officer where the date of such sanction for all Classes less XIIth shall be 31st March and 31st July for Class XII.
(iii) Where SLS is different from LDS, and the officer exercises the option to retain the accommodation at LDS, the Station Commander at LDS will offer accommodation of lower scale/ type to the officer. Should this not be accepted by the Officer, he shall be offered hired accommodation or allowed to sponsor private house on HRR basis. Where the officer is already staying in lower scale/ type accommodation/ Hired house / privately sponsored house on HRR basis, he shall be permitted retention of same accommodation. Where the officer is staying under own arrangements on HRA basis, efforts must be made to convert the arrangements to HRR basis upon specific request of the officer to do so. Where an officer is occupying FAFA and Station Commander considers it feasible to permit retention of the same accommodation being of lower scale, he shall re-appropriate one Dwelling Unit of similar scale to the FAFA pool.
26. A bare perusal of this paragraph-4 would indicate that entitlement of accommodation of officers on study leave is the same as that granted to a regular officer on duty. However, permission to retain accommodation at last duty station is to be granted by the Station Commander upon specific application for the same by the officer upon proceeding on study leave. What would be determined as a last duty station for the purpose of study leave is then set out and by Clause - (c) of this paragraph, it is enumerated as to how and when the study leave station and last duty station are the same, the Station Commander should, as far as feasible, permit retention of the same accommodation provided that accommodation is not reserved accommodation vide para 103 of SAO 10/S/86 on the date of commencement of study leave. Where the officer is occupying reserved accommodation, it shall be vacated within 10 days of commencement of study leave by shifting that officer to alternate accommodation of entitled class. Then, what is enumerated is, should it not be feasible to permit retention of same accommodation due to administrative reasons, the Station Commander is expected to allot alternate accommodation of entitled scale. Administrative reason may include Zoning of accommodation in Zone Pools, Sanctioned repairs as per approved repair program or Force accretions at the station on long term plan basis or any other operational or administrative reason duly approved by the Head Quarter Commander. In any case, the completion of current academic session shall be permitted before shifting the officer where the date of such sanction for all Classes less XIIth shall be 31st March and 31st July for Class XII.
27. We do not read this policy as conferring or creating any absolute right for retention of the same accommodation by an officer proceeding on study leave. The allotment of residential accommodation as is rightly contended by Mr. Rajguru, is a matter of administrative policy. The freedom and latitude in that behalf must be extended to the Armed Forces administration else this Court would step-in even in policy matters. That is not permissible. Eventually, such matter ought to be left to the experts and those in-charge of administration of the Armed Forces. It would be better if they evolve and implement the policy uniformly. It is only in rare and exceptional cases where there is patent arbitrary action, malafides or discrimination that writ Court be called upon to interfere. On issue of mere application of policy guidelines, we do not think that the Petitioner can seek the intervention of this Court.
28. Once the earlier policy does not create any right and as enumerated above, then, we are unable to accept the arguments of Mr. Deshmukh. It is apparent from the reading of this policy document and as a whole that it is the Station Commander who has to take a decision on the request of a particular employee. He must consider that request in the backdrop of the interests of the organization, availability of the accommodation in the station area, long term requirement of accommodation for such officers who would be joining that station for duty. If their requirement is kept in the forefront and arrangement of the accommodation for them is the prime concern of the Station Commander, then, he has to strike a balance. He is expected not to uproot or dislocate an officer who has proceeded on study leave and should make available to him such accommodation at that very site so that his children's education or matters of medical treatment and emergencies are taken care of. He then does not have to bother about his family and can concentrate on studies. Such a balanced act is expected to be performed and that is why a guiding document is prepared. We do not read anything more in the same.
29. Once the above view is taken, then, we do not think that the Petitioners can urge that the later policy and outlined on 30th January, 2015 is being applied retrospectively. We do not think that to be the case for in the document styled as the new policy, the same paragraphs of the Army Head Quarters letters order or standing orders are referred. The subject of the said policy is also the same. It is only an additional guiding principle in the existing policies. They were found not to be implemented uniformly. It is to take care of a uniform implementation and inconsistencies, in the interpretation of the existing policy that this document is issued. Paragraph 4 of the same therefore must be read in the above backdrop. Once the object and purpose sought to be achieved is as enshrined above, then, an officer on study leave, though entitled to regular accommodation, that cannot come at the cost of those who have reported to duty at that station but are without any residential accommodation. The cases of such employees are taken-up on priority basis and at the same time those proceeding on study leave are granted commensurate benefit. As held above, a balancing act is to be performed by providing to such officers who are on study leave, either hired accommodation, House Rent Allowance but in individual cases where children's education and medical emergencies are concerned and involved, the Station Commander has enough discretion. He can take appropriate and informed decision on case to case basis.
30. Once the nature of the controversy is as noted above, then, in writ jurisdiction we can hardly intervene. We cannot prescribe housing policies for the Armed Forces nor can we interfere in their existing policies in the garb of interpreting them. Even as far as grant of study leave is considered, the scope of interference in writ jurisdiction is extremely limited. The grounds on which this Court can interfere are referred above. We do not think that the present case falls within those parameters or grounds. We, therefore, proceed to dismiss this Writ Petition. We are of the view that the Petitioners cases, in any event, fall within the current policy. There is no retrospective application of the same as alleged. On the date of consideration, sanction and commencement of study leave the policy enunciated on 30th January 2015 was in force.
31. On the earlier occasion and even today, we enquired from Mr. Rajguru as to why the Petitioners cannot be accommodated for a reasonable time and more-so when their study leave period is coming to an end shortly. If the study leave period is coming to end on 31st May, 2017 and if the Petitioners have occupied or continued to occupy the premises till date no useful purpose will be served in immediately ousting them or throwing them out of the existing accommodation unless and until there are pressing requirements as those reporting for duty have to be accommodated immediately, then, the Station Commander can take a sympathetic view and allow the Petitioners to retain the existing accommodation till expiry of said leave period. Mr. Rajguru, on instructions, states that it will not be possible to give a definite commitment to the Court nor make a statement of the above nature. All the Petitioners cannot be protected and by a blanket order.
32. Though we understand the difficulties of the Respondents, what we find is that the Petitioners brought to the notice of this Court by a Civil Application some instances where similarly situate officials were allowed to retain the accommodation in their possession even though they proceeded on study leave and that permission to retain continued till the end of their study leave period. If that is how the policy was implemented and individual officers were accommodated, then, we do not see why the cases of the present Petitioners cannot be considered. We do not mean that they should be favourably considered but at least the officers concerned and superior in command should note the requests and if permissible and otherwise possible allow retention in individual cases without creating any rights. We clarify that when we expect the authority to act as above, our order and direction shall not create any right in favour of parties like the Petitioners. We, therefore, clarify that independent of the conclusion reached in this Writ Petition, we grant liberty to the Petitioners to make an application in writing for retention of the existing accommodation and by pointing out cases of individual hardship and difficulties including that in the midst of the academic session, the education of their children should not be disrupted or if some treatment is to be administered by a particular hospital or a Doctor in Pune within the vicinity of cantonment area, then, that also should be allowed to be taken till the study leave period comes to an end. All such requests, if made in writing, shall be considered in the light of the defined and guiding policy and a decision taken thereon as expeditiously as possible and within a period of two weeks from its receipt.
33. To enable the Petitioners to make the above application and avail of any benefits in terms of current policies and to enable the authorities to take a decision thereon, we direct that for a period of two months from today, the Petitioners shall not be evicted from their existing accommodation. However, this order and direction shall not create any right or equity in their favour in the event the authority turns down or refuses the request, the Petitioners have to vacate the premises or shift to some other accommodation/s as are made available for their residence. They can also avail of the benefit of House Rent Allowance. The Writ Petitions are accordingly disposed off.
34. We also direct that for a period of two months no coercive action including recovery of damage, rent or disciplinary proceedings be taken against the Petitioners.
35. In view of disposal of the above Writ Petitions, nothing survives in the Civil Application No.2533 of 2016 and the same is disposed of accordingly.