The Supreme Court on Monday held that a government employee who is a Kashmiri migrant cannot retain government accommodation after retirement for a period exceeding three years and there cannot be any justification on the basis of social or economic criteria to allow them to stay in government accommodation for an indefinitely long period.
A Bench of Justice Hemant Gupta and Justice AS Bopanna said that the Office Memorandum allowing the retired government employees who are Kashmiri migrants to retain government accommodation for an indefinitely long period is “unconstitutional” for being totally arbitrary and discriminatory.
“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 the 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, maybe in Delhi or in the National Capital Region or for that matter anywhere in the country,” the Bench stated in its order.
It said that government accommodation is meant for serving officers and cannot be taken as recourse to stay in such accommodation for the lifetime of the government servants or his/her spouse.
The order read, “The compassion shown to Kashmiri migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively… 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 pensioner 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 an indefinitely long period,” the order further stated.
In August this year, the Bench had said that the right to shelter does not mean the right to government accommodation and had set aside a Punjab and Haryana High Court order which had allowed a retired Intelligence Bureau officer to retain government accommodation.
It had observed that government accommodation is meant for serving officers and officials and not to the retirees as benevolence and distribution of largesse.
While setting aside the High Court order, the top court had granted time for Onkar Nath Dhar, a Kashmiri migrant, retired on October 31, 2006, after his service as an officer of the Intelligence Bureau in Delhi, to hand over vacant physical possession of the premises on or before October 31, 2021, i.e., after 15 years of his attaining the age of superannuation.
Now, the Bench said the government accommodation which was occupied by Nath, will be vacated by November 30, and government to file an action taken report on or before December 15, 2021.
After retirement, Dhar had requested the government to allow him to retain the house allotted to him on a nominal license fee till the circumstances prevailing in Jammu and Kashmir improve and the government makes it possible for him to return to his native place. However, proceedings under the Public Premises (Eviction of Unauthorised Occupant) Act, 1971, were initiated against him.
Dhar challenged the proceedings before the Faridabad District Court which was rejected and thereafter the Punjab and Haryana High Court, relying on a Supreme Court judge allowed his plea on the ground that it is not possible for him to return to his own State and that due to which order of eviction shall be kept in abeyance. The order of the High Court was later challenged by the Centre in the top court.
Dhar had relied on the right of shelter, which is a fundamental right under article 21 of the Indian Constitution
“The right to shelter does not mean the right to government accommodation. The government accommodation is meant for serving officers and officials and not to the retirees as benevolence and distribution of largesse. Thus, we find that the orders passed by the High Court are absolutely without any basis and in the absence of any policy of allotment of government accommodation to a retired government servant, who may be the victim of terrorism. The orders passed are wholly arbitrary and irrational,” the court had earlier stated.
The top court had noted that Dhar was an officer of the Intelligence Bureau and has drawn his salary and availed of alternative.